Judge Mark E. Windham, Case 22STLC00767 2022-09-01 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC00767, Date: 2022-09-01 Tentative Ruling

Case Number: 22STLC00767 Hearing Date: September 1, 2022 Dept: 26

PROCEEDINGS: MOTION TO COMPEL APPEARANCE AND TESTIMONY AT PROPERLY NOTICED DEPOSITION AND REQUEST FOR SANCTIONS

MOVING PARTY: Plaintiff Gerald V. Selvo

RESP. PARTY: None

MOTIONS TO COMPEL APPEARANCE AT DEPOSITION

AND REQUEST FOR SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

Plaintiff Gerald V. Selvo’s Motion to Compel Appearance and Testimony at Deposition and Request for Sanctions is GRANTED. DEFENDANT JOSEPH SABET IS ORDRED TO APPEAR FOR DEPOSITION AT A DATE AND TIME DETERMINED BY PLAINTIFF’S COUNSEL, WITHIN 20 DAYS OF THIS ORDER. DEFENDANT JOSEPH SABET AND COUNSEL OF RECORD ARE JOINTLY ORDERED TO PAY SANCTIONS OF $100.00 TO PLAINTIFF WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

BACKGROUND: Action for violation of Consumer Legal Remedies Act, misrepresentation and unfair competition. Cross-action for promissory fraud and quantum meruit.

REQUEST FOR RELIEF: Compel Defendant Sabet to appear and testify at the properly noticed deposition. The objections to the deposition notice are without merit. Award Plaintiff sanctions of $100.00 against Defendant Sabet and counsel of record.

OPPOSITION: None filed as of August 29, 2022.

REPLY: None filed as of August 29, 2022.

ANALYSIS:

On February 4, 2022, Plaintiff Gerald V. Selvo (“Plaintiff”) filed the instant action for violation of Consumer Legal Remedies Act, misrepresentation and unfair competition against Defendants Joseph Sabet and Sabet Dental Corporation (“Defendants”). On April 26, 2022, Defendants filed a Special Motion to Strike the Complaint and Motion to Reclassify Action. Defendant Sabet then filed a Cross-Complaint on May 2, 2022.

On May 18, 2022, the Court took the Special Motion to Strike and Motion to Reclassify under submission. (Minute Order, 05/18/22.) On May 19, 2022, the clerk filed a notice of reclassification, reassigning the action from the limited jurisdiction court to the unlimited jurisdiction court. (Notice of Reclassification, 05/19/22.) Also, on May 19, 2022, the Court issued its ruling by placing the Special Motion to Strike off calendar, continuing the Motion to Reclassify, and striking the Cross-Complaint on its own motion. (Minute Order, 05/19/22.) The Motion to Reclassify is now set for hearing on September 8, 2022.

On June 2, 2022, the case was reassigned back to the limited jurisdiction court.

On August 2, 2022, Plaintiff filed the instant Motion to Compel Appearance and Testimony at Properly Noticed Deposition and Request for Sanctions. No opposition has been filed to date.

Discussion

Code of Civil Procedure section 2025.450, section (a) states in relevant part:

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(Code Civ. Proc., § 2025.450, subd. (a).) The motion must also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450, subds. (b)(1), (2).)

Plaintiff served Defendant Sabet with a Notice of Deposition on June 9, 2022. (Motion, Separate Statement, Exh. 1.) Defendant Sabet served a response containing objections on July 11, 2022. (Id. at Exh. 2) Following a meet and confer exchange from July 13-18, 2022, Plaintiff filed the instant Motion on August 2, 2022. (Id. at Exhs. 3-4.) The Court finds the meet and confer requirement has been satisfied.

Defendant Sabet objected to the deposition notice pursuant to Code of Civil Procedure section 2025.410, on the grounds that (1) the deposition place, date and time was unilaterally set without meet and confer and claiming that counsel had a conflict; (2) unwarranted annoyance, embarrassment, or oppression of undue burden and expense; and (3) failure to list where the deposition will be taken or how the deposition will be taken remotely. (Motion, Separate Statement, Exh. 2, pp. 1-2.) Of these objections, the first fails to cite any supporting authority that setting the deposition date unilaterally is grounds for a valid objection. Nor is the second ground of unwarranted annoyance, embarrassment, or oppression grounds to oppose the deposition notice. Rather, these are grounds upon which the deponent may move for a protective order pursuant to Code of Civil Procedure section 2025.420, subd. (b). Finally, Defendant Sabet’s objection that the notice does not include the address where the deposition will take place, as required by 2025.220, subdivision (a)(1), is inapplicable to a remote deposition. The objections, therefore, are without merit.

An award of sanctions is also appropriate due to Defendant’s failure to cooperate in the taking of his deposition. Plaintiff’s request for monetary sanctions is granted in the amount of $100.00 based on costs incurred. (Motion, Selvo Decl., ¶5.) The sanctions are awarded jointly and severally against Defendant Sabet and counsel of record.

Conclusion

Plaintiff to give notice.