Judge: Mel Red Recana, Case: 21STCV33331, Date: 2024-02-29 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 21STCV33331 Hearing Date: March 4, 2024 Dept: 45
Hearing
date: March 4, 2024
Moving
Party: Plaintiffs Isai Edgar
Castellanos, et al.
Responding
Party: Defendant Potomac Gardens, LLC
Motion
to Compel Deposition
The Court
considered the moving papers, opposition, and reply.
The
motion is GRANTED.
Background
On
September 9, 2021, Plaintiffs Isai Edgar Castellanos; Denise Babonoyaba;
Jayleen Denise Castellanos, a minor by and through her Guardian ad Litem, Denise
Babonoyaba; Alazay Jazleen Castellanos, a minor by and through her Guardian ad
Litem, Denise Babonoyaba; Janey Lexine Castellanos, a minor by and through her
Guardian ad Litem, Denise Babonoyaba; and Isai Edgar Castellanos Jr., a minor
by and through her Guardian ad Litem, Denise Babonoyaba (“Plaintiffs”) filed
the Complaint against Defendant Potomac Gardens, LLC (“Defendant”) and DOES 1
through 50, inclusive for: (1) Breach of Implied Warranty of Habitability; (2)
Breach of Statutory Warranty of Habitability; (3) Breach of the Covenant of
Quiet Enjoyment; (4) Negligence; (5) Violation of Civil Code Section 1942.4;
and (6) Private Nuisance.
On
August 25, 2023, Plaintiffs filed this instant Motion to Compel Deposition of
Karen Kashanian. On January 29, 2024, Defendant filed an opposition. On the
same day, Plaintiffs filed a reply.
Legal
Standard
Any party may
obtain discovery … by taking the oral deposition of any person, including any
party to the action. (Code Civ. Proc., § 2025.010.)
Where a party
objects to the deposition, the proper remedy is an objection under Code of Civil
Procedure Section 2025.410. If such an objection is made within three calendar
days before the deposition date, the objecting party must make personal service
of that objection. (Code Civ. Proc., § 2025.410, subd. (b).)
Pursuant to Code
of Civil Procedure Section 2025.450, subdivision (a),¿“If, after service of a
deposition notice, a party to the action . . . , 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 . . . 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 . . . described in the deposition notice.”¿
(Code Civ. Proc., § 2025.450, subd. (a).)¿
¿
Discussion
Meet and Confer
Pursuant to Code of Civil Procedure Section 2025.450, subdivision (b), “A
motion under subdivision (a)… shall be accompanied by a meet and confer
declaration under Section 2016.040, or, when the deponent fails to attend the
deposition and produce the documents, electronically stored information, or
things described in the deposition notice, by a declaration stating that the
petitioner has contacted the deponent to inquire about the nonappearance.”¿¿(Code
Civ. Proc., § 2025.450, subd. (b).)¿
Here, Plaintiffs’ advance the
declaration of their counsel of record, Roy Diaz, discussing his meet and confer
efforts with Defendant’s counsel. On July 24, 2023, Plaintiffs served the
Notice of Deposition of Karen Kashanian set for August 22, 2023 via electronic
mail. (Diaz Decl., ¶ 2, Ex. A.) On August 11, 2023, Diaz had a telephone
conference with Defense counsel regarding outstanding discovery issues in which
Defense counsel stated she would assign an associate attorney to assist and
respond to Plaintiffs’ discovery requests and provide updated availability for Defense
counsel’s clients. (Id. at ¶ 3.) Diaz avers based on that representation,
the properly noticed deposition of Defendant’s property manager, Sandra Gomez was
taken off calendar. (Id.) On August 21, 2023, Plaintiffs received an
email from Defense counsel inquiring whether the deposition of Karen Kashanian
was going to continue as noticed and advising she was engaged in trial. (Id.
at ¶ 4.) Diaz avers he received no objection to the deposition and no alternative
dates to reschedule the deposition despite repeated requests, so with discovery
closing on September 9, 2023, the deposition continued as noticed. (Id.)
Lastly, Diaz avers as of the filing of this motion, Defendant had not provided
responded or provided a deposition date to continue said deposition. (Id.
at ¶ 5.) Therefore, Plaintiffs’ have sufficiently met and conferred regarding
the deposition notice issues.
Motion
to Compel Deposition
Plaintiffs’ move for an order compelling the deposition of Karen
Kashanian. Plaintiffs argue Defendant refuses to produce Kashanian and failed
to object to the taking of said deposition as properly noticed. Plaintiffs
further argue they followed up on multiple occasions regarding a new date, but
never received a response from Defendant. Lastly, Plaintiffs contend the Demand
for Production of Documents accompanying the Notice of Deposition sought documents
highly relevant to the underlying issues in this case concerning illegal
inspection, Defendant’s policies and procedures for entering a tenant’s unit,
and the intent of Defendants in illegally entering Plaintiffs’ unit. (Diaz
Decl., ¶ 2, Ex. A.)
In opposition, Defendant argues it has not refused to produce the
deponents. Furthermore, Defendant argues its counsel has offered to provide alternative
dates for the depositions to occur multiple times and Plaintiffs’ counsel
simply refused to accept the offer. Finally, Defendant argues it acted with
substantial justification in attempting to reschedule the unilaterally noticed
depositions.
In reply, Plaintiffs argue Defendant offered to provide depositions once
before this present motion was filed and once after the motion was filed but
has not at any time ever provided actual dates for the deposition. As such,
Plaintiffs contend Defendant provides a sham argument regarding repeatedly
offered alternative deposition dates.
The Court finds that Plaintiffs’ properly served Defendant the Notice of
Deposition set for August 22, 2023. Further, Plaintiffs met and conferred with Defendant
to inquire about appearance at the noticed deposition. Although Defendant
advances evidence that its counsel offered to provide deposition dates, there
is no evidence that any deposition dates were actually provided to Plaintiffs’
counsel for the purpose of rescheduling the noticed deposition. Moreover, the
deponent was not produced for the deposition and Defendant did not serve an
objection to the noticed deposition on Plaintiffs.
Therefore, the motion to compel deposition of Karen Kashanian is GRANTED.
Request for Monetary Sanctions
If a motion
under Code of Civil Procedure¿2025.450, subdivision (a) is granted, the court
shall impose a monetary sanction in favor of the party who noticed the
deposition and against the deponent or the party with whom the deponent is
affiliated, unless the court finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust. (Code Civ. Proc., §¿2025.450, subd. (g)(1).)
Plaintiffs’ seek
recovery of sanctions and costs in the amount of $2,785.00 against Defendant
and its counsel of records, joint and severally. (Diaz Decl., ¶ 6, Ex. C.) Diaz
avers he has spent: (1) 2.0 hours reviewing the case file and preparing this
motion; and (2) anticipates 1.0 hour to review the opposition, prepare the
reply, and appear at the hearing at a billing rate of $750.00 per hour. (Id.)
Moreover, Diaz avers that Plaintiffs’ have expended the cost of $535.00 for the
court reporter for the deposition. (Id.) However, the court reporter
invoice only supports $515.00 in costs.
Therefore, the
Court shall award sanctions in the amount of $2,765.00 against Defendant and
its counsel joint and severally for (1) 2.0 hours reviewing the case file and
preparing this motion; (2) 1.0 hour for reviewing the opposition, preparing the
reply, and appearing at the hearing at a billing rate of $750.00 per hour for a
total of 5.0 hours; and (3) $515.00 for the court reporter fee.
Defendant
shall provide alternative depositions dates and pay sanctions in the amount of
$2,765.00 within 30 days of this order.
It
is so ordered.
Dated: March 4, 2024
_______________________
ROLF M. TREU
Assigned Judge of
the Superior Court