Judge: Mark A. Young, Case: 22SMCV00854, Date: 2024-03-28 Tentative Ruling

Case Number: 22SMCV00854    Hearing Date: March 28, 2024    Dept: M

CASE NAME:           Royal Lee LLC v. 1055 Shadow Hill LLC, et al.

CASE NO.:                22SMCV00854

MOTION:                  Motion to Compel the Deposition of Kimora Lee Simmons and the PMK of Plaintiff Royal Lee LLC

HEARING DATE:   3/28/2024

Legal Standard

Service of a proper deposition notice obligates a party or “party-affiliated” witness (officer, director, managing agent or employee of party) to attend and testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying. (CCP § 2025.280(a).) If, after service of a deposition notice, a party deponent fails to appear, testify, or produce documents or tangible things for inspection without having served a valid objection under CCP § 2025.410, the deposing party may move for an order compelling attendance, testimony, and production. (CCP § 2025.450(a).) The motion must be accompanied by a meet and confer declaration, or, when a party deponent fails to attend the deposition, the motion must also be accompanied by a declaration stating that the moving party has contacted the party deponent to inquire about the nonappearance. (CCP § 2025.450(b)(2).)

A motion to compel production of documents described in a deposition notice must be accompanied by a showing of good cause. (CCP § 2025.450(b)(1).) In other words, the moving party must provide evidence (generally in the form of declarations) showing specific facts justifying inspection of the documents described in the notice. Courts liberally construe good cause in favor of discovery where facts show the documents are necessary for trial preparation.

The motion to compel must be “made no later than 60 days after the completion of the record of the deposition.” (CCP § 2025.480(b).) This time limit also applies to motions based on a deposition subpoena for production of documents or a business records subpoena. The 60-day time limit runs from the date objections are served because the deposition record is then complete. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192.)

EVIDENTIARY ISSUES

Plaintiffs’ objections are OVERRULED.

Analysis

Defendants 1055 Shadow Hill LLC and Steve B. Mikhov moves to compel the deposition of Cross-Defendant Kimora Lee Simmons and the Person Most Knowledgeable (PMK) of Plaintiff/Cross-Defendant Royal Lee LLC. Defendants also move sanctions against Plaintiffs and their attorneys of record pay the moving party the sum of $10,565.00.

On March 17, 2023, Defendants noticed the depositions of Kimora Lee Simmons and the Royal Lee LLC’s PMK, setting the dates for May 8, 2023 and May 9, 2023. (Browning Decl. ¶ 3, Ex. 1.) Simmons and Royal Lee claimed they were unavailable for those dates. Following meet and confer efforts, Defendants served First Amended Notices of Depositions, setting the depositions for June 28, 2023, and June 29, 2023. (Browning Decl. ¶5, Ex. 5.) Plaintiffs objected to the notice on June 23, 2023. (Id., ¶ 5, Ex. 6.) Following a meet and confer letter, Plaintiffs advised Defendants on June 27, 2023, that they would be out of town for “most (if not all) of the next few months” and provided dates three months out. (Id. ¶7; Ex. 8.) Over the next few months, the parties met and conferred to no avail. (Id., ¶¶ 8-11.) On December 28, 2023, Defendants advised Plaintiffs that they would select a date for the depositions and notice the depositions. (Id., ¶12, Ex. 10.) Plaintiffs did not respond. (Id.)

On January 9, 2024, counsel for Defendants served Second Amended Notices of Deposition. (Id. ¶13; Ex. 11.) On January 25, 2024, counsel for Plaintiff served objections to the Second Amended Notices of Deposition, claiming that “the currently scheduled deposition dates of February 1 and February 6 don’t work for our clients, but we are working with them to find dates of availability in late February.” (Id., Ex. 12.) On January 26, 2024, Defendants advised that they planned on moving forward with the depositions unless firm dates were provided by Plaintiffs by the end of the day. On January 28, 2024, Simmons and Royal Lee advised Defendants that they were available February 28 and February 29, 2024. (Id. ¶15.) On January 30, 2024, Defendants served Third Amended Notices of Deposition with the provided dates. (Id. ¶15; Ex. 14.) The deposition notices requested that the deponents produce thirty-one (31) categories of documents at their deposition. (Ex. 14, Ex. A.)

On February 21, 2024, Simmons and Royal Lee served objections to the deposition notices and insisted that the depositions proceed remotely because the deponents “would have to drive from the hills in Beverly Hills [to Torrance] through rush hour traffic. That is a risky proposition in LA and there is no guaranty that they will make it there in a timely fashion.” (Id. ¶16, Ex. 15.) Defendants insisted on in-person depositions. (Id., ¶ 17.) On February 22, 2024, Plaintiffs stated that they “are not opposed to in person depositions” but requested that the depositions take place in Plaintiffs’ counsel’s offices instead for the “convenience” of the deponents. (Id. ¶18, Ex. 15.) Defendants advised Plaintiffs that the depositions would take place at their noticed location. (Id.) On February 23, 2024, counsel for Plaintiffs claimed that the deponents were now “out of town” and would be unable to participate in person for their scheduled depositions on February 28 and 29, 2024, despite the fact that they had selected and provided the dates of February 28 and 29 as available dates after months of delays in providing dates. (¶19, Exs. 15.) On February 27, 2024, one day before the first scheduled deposition, Plaintiffs unilaterally cancelled the in-person depositions via e-mail, claiming that “we have informed our clients that the depositions are no longer going forward this week.” (Id. ¶20, Ex. 15.)  Defendants conducted the in-person depositions as noticed on February 28 and 29, 2024. (Id. ¶20, Ex. 16 & 17.) Simmons, Royal Lee’s PMK, and their counsel did not appear at their depositions. (Id.)

Defendants establish that they served valid deposition notices on Simmons and Royal Lee, and that RP failed to appear as noticed. The objections to the notice are not valid objections under Code of Civil Procedure section 2025.410. Thus, the depositions should have gone forward as noticed.

Simmons and Royal Lee insist that they were compliant with the deposition notices by being available for remote depositions, but fail to justify their refusal to attend the depositions as noticed. They further argue that the notice was confusing, and they believed that the deposition was to be conducted remotely. (Simmons Decl., ¶ 2, Yemini Decl., ¶ 2.) However, there was nothing confusing about the notice, as they clearly state that the deposition was to be “conducted in person at Kendall Law, a Professional Law Corporation located at 1230 Crenshaw Blvd, Suite 101, Torrance, CA 90501.” The fact that Defendants reserved the right to use certain technologies would not contradict the clear instructions that the deposition was to be conducted in person at a specific time and place. Simmons and Royal Lee’s purported confusion about the requirements of the deposition should have been clarified by counsel. Further, their counsel objected to this notice on February 22, 2024, asserting that it would be inconvenient for Simmons and Royal Lee to drive from Beverly Hills to Torrance. (Ex. 15.) Counsel then conceded that they were “not opposed to in-person depositions” but requested that the depositions take place in Century City. (Id.) Counsel clearly understood that the notice was for an in-person deposition. In addition, counsel should have explained to Simmons and Royal Lee’s PMK the legal effect of the deposition notices so that they did not leave the state on those dates.

Simmons and Royal Lee fail to show good cause for the Court to order remote depositions, or an alternative location for the depositions. They raise for the first time that they have ailments which prevent them from attending in-person depositions in Torrance. Yemini claims that he had “several back surgeries and have severe back problems [and] cannot sit [f]or extended periods of time without severe back pain and need to stand, walk or lie prone to avoid or alleviate that pain.” (Yemini Decl., ¶ 5.) Simmons claims that she has “recently been sick with the COVID-19 virus,” that she has been avoiding “lengthy in person meetings with people outside my family in closed environments,” and that she is concerned about “health risks” posed by those attending the deposition. (Simmons Decl., ¶3.) The Court does not find these conclusory excuses sufficient to avoid the in-person depositions at the noticed location. The record also contradicts these excuses. Simmons claims that he cannot travel for prolonged periods of time yet travels to and from New York on business several times a year. (Yemini Decl., ¶ 4.) Yemini’s ability to handle 5-6 hour flights multiple times a year would undercut his assertion that an hour long drive to Torrance is unmanageable.  Simmons broadly cites COVID-19 and concerns over unspecified health risks posed by the deposition, yet she has recently posted pictures of herself attending a crowded professional basketball game. (See Rep., at fn. 11.) Thus, the Court sees no persuasive reason to modify the location of the deposition.

Accordingly, the motion to compel is GRANTED. Simmons and Yemini (or another PMK for Royal Lee) must attend their respective depositions within 20 days at the noticed location – Kendall Law, a Professional Law Corporation, 1230 Crenshaw Blvd, Suite 101, Torrance, CA 90501. The parties are ordered to meet and confer on scheduling the depositions at mutually agreeable times and dates.

Defendants request sanctions in the amount of $10,565.00, for 21.9 hours of time at varying rates and costs of $1,880.00. (Browning Decl., ¶¶ 22-23.) Reviewing the totality of the record, the Court finds that a reasonable fee in this instance would be $6,280.00, inclusive of costs. Sanctions are therefore imposed in the reduced total amount of $6,280.00, inclusive of costs, against Plaintiff/Cross-Defendant Royal Lee LLC, Cross-Defendant Kimora Simmons and their counsel of record Barnes & Thornburg LLP, jointly and severally. Sanctions are to be paid within 30 days.