Judge: Melvin D. Sandvig, Case: 22CHCV00073, Date: 2024-12-10 Tentative Ruling

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Case Number: 22CHCV00073    Hearing Date: December 10, 2024    Dept: F47

Dept. F47

Date: 12/10/24                                                         TRIAL DATE: 6/30/25

Case #22CHCV00073

 

MOTION TO COMPEL DEPOSITION

 

Motion filed on 5/9/24.

 

MOVING PARTY: Plaintiff 511-571 Fifth Street B.P., LLC aka 5th Street B.P., LLC

RESPONDING PARTY: Defendant/Cross-Complainant Lori Banks

NOTICE: ok

 

RELIEF REQUESTED: An order compelling Defendant/Cross-Complainant Lori Banks to submit to an oral deposition by Plaintiff 511-571 Fifth Street B.P., LLC aka 5th Street B.P., LLC.

Additionally, Plaintiff requests sanctions against Banks and her counsel, Armen  Mitilian, jointly and severally in the amount of $6,482.50 and require attorney Mitilian to file a copy of the order with the State Bar. 

 

RULING: The motion is granted as set forth below. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of a commercial lease between Plaintiff 5th Street B.P., LLC (Plaintiff) and Defendants Lori Banks (Banks) and A Thread Ahead, Inc. (ATA) (collectively, Defendants).  Plaintiff’s operative First Amended Complaint contains a single cause of action for breach of contract based on unpaid rent and destruction of property.  Defendants have cross-complained against Plaintiff and Adom Ratner-Stauber (Stauber) for breach of contract, assault, battery and intentional infliction of emotional distress. 

 

On 2/26/24, Plaintiff requested that defense counsel provide dates for Banks’ deposition.  (Meyers Decl., Ex.B).  After receiving no response, on 2/26/24, Plaintiff served a Notice of Taking Banks’ Deposition on 3/14/24, which  indicated that Plaintiff was amenable to alternative dates, if 3/14/24 did not work for Banks or her counsel.  (Id., Ex.B, C).

 

On Friday, 3/8/24, at 5:49 p.m., Banks’ counsel emailed Plaintiff’s counsel indicating that he could not appear for the 3/14/24 deposition due to his trial schedule and claiming that certain issues needed to be addressed before the deposition could take place.  (Id., Ex.D).  On Monday, 3/11/24, at 7:20 p.m., defense counsel emailed an Objection to the Notice of Deposition claiming the objections were personally served earlier in the day.  (Id., Ex.E, O).  On 3/12/24, Plaintiff’s counsel responded, noting that the personal service of the objections did not occur, and as such all objections had been waived, and requesting alternative dates for the deposition.  (Id., Ex.F; Younessi Decl.).

 

On 3/13/24, Plaintiff’s counsel called defense counsel, who did not answer; therefore, an email was sent.  (Meyers Decl., Ex.G).  Banks’ counsel responded at 10:45 p.m., again claiming he could not provide dates because of his trial schedule, which Plaintiff’s counsel questions.  (Id., Ex.H, I; See RJN).

 

Having received no dates for the deposition, on 3/27/24, Plaintiff served a second Notice of Taking Deposition for 4/12/24.  (See Meyers Decl., Ex.J, K, L).  On 4/9/24, Banks’ attorney claimed that the second Notice of Taking Deposition was “found” in his junk email folder.  (Id., Ex.M).  Again, Banks’ attorney claimed that because Banks fears Stauber, he cannot be present for the deposition and that Plaintiff’s counsel’s office lacked sufficient space to take the deposition.  Id.  Later, defense counsel claimed that a messenger attempted to personally serve objections at Plaintiff’s counsel’s office.  (Id., Ex.N, O).  Plaintiff sent a response via Fed X, rejecting defense counsel’s contentions.  (Id., Ex.P).  Banks failed to appear for her deposition on 4/12/2024.  (Id., Ex.Q).  Plaintiff’s counsel followed up regarding the failure to appear by phone and email.  (Id., Ex.R).  Banks’ counsel contended there was no failure to appear because an objection was timely served; however, Plaintiff’s counsel disagrees.  (Id., Ex.S, T).

 

On 5/9/24, Plaintiff filed and served the instant motion seeking an order compelling Defendant/Cross-Complainant Lori Banks to submit to an oral deposition by Plaintiff 511-571 Fifth Street B.P., LLC aka 5th Street B.P., LLC.  Additionally, Plaintiff requests sanctions against Banks and her counsel, Armen  Mitilian, jointly and severally in the amount of $6,482.50 and require attorney Mitilian to file a copy of the order with the State Bar.  Banks has not opposed or otherwise responded to the motion. 

 

ANALYSIS

 

CCP 2025.450 provides, in relevant part:

 

“(a) 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.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall 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.

(2) The motion 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.

. . .

 

(g)(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.”

 

CCP 2025.410(a) provides:   

 

“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.” (emphasis added).

 

The unrefuted evidence before the Court establishes that Plaintiff attempted to obtain dates from defense counsel before noticing Banks’ deposition and then properly noticed Banks’ deposition on two occasions.  Additionally, defense counsel has not refuted Plaintiff’s counsel’s claims that the objections to the depositions were not timely/properly served at least 3 days before the scheduled deposition dates.  Even if the objections were timely served, the Court finds that they lack merit. 

 

First, the Court finds the document requests are reasonable considering the subject matter of the action.  Second, Plaintiff attempted to obtain mutually agreeable dates before noticing the deposition.  Third, Banks has failed to establish that her alleged fear of Stauber is such that it warrants precluding him from being present at the deposition.  Fourth, Banks has failed to establish that taking the deposition at Plaintiff’s counsel’s office is impracticable given the size of the space as Plaintiff’s counsel has indicated that less people will be present than at the deposition of A Thread Ahead Inc.’s Persons Most Knowledgeable Deposition and that additional seating is available upon request.  Fifth, Banks has failed to establish that she is only available to be deposed in person on Fridays, especially since she is available for deposition remotely on other days.    

 

CONCLUSION

 

Based on the foregoing, counsel for the parties are ordered to meet and confer by 12/13/24 regarding a mutually agreeable date, within the next 45 days, for Defendant/Cross-Complainant Lori Banks’ deposition to take place in Plaintiff’s counsel’s office.  Cross-Defendant Adom Ratner-Stauber is not precluded from attending the deposition.   

The Court further finds that Plaintiff is entitled to an award of sanctions against Banks and her  counsel, Armen G. Mitilian, in the amount of $2,981.65 (2 hours x $300/hour to prepare facts + 3 hours x $375/hour to review, research and prepare motion + 1 hour x $375/hour to prepare for and appear at the hearing + $820 non-appearance fee + $61.65 filing fee).  CCP 2023.010(d), (e); CCP 2023.030(a); 2025.450(g)(1); (Meyers Decl. ¶6; Younessi Decl.).  The sanctions are payable within 30 days.