Judge: Michael E. Whitaker, Case: 19STCV38470, Date: 2023-01-17 Tentative Ruling

Case Number: 19STCV38470    Hearing Date: January 17, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTIONS

            Plaintiff Thabo N. Mzilikazi (Plaintiff) moves to compel the depositions of the person most knowledgeable (PMK) for Defendant PV Holding Corporation (PV), as well as the deposition of Defendant Siwei Huang (Huang).  Further, Plaintiff moves to deem admitted the matters specified in Request for Admissions, set one (RFA), which Plaintiff propounded on Huang.  Plaintiff seeks monetary sanctions in connection with the motion to compel PV’s PMK deposition and the motion to deem RFA admitted.  Defendants PV and Huang (collectively, Defendants) oppose the motions.

ANALYSIS

1. DEPOSITIONS

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent’s attendance and testimony.  (Code Civ. Proc., § 2025.450, subd. (a).) 

Here, on August 17, 2022, Plaintiff served the subject deposition notice for PV’s PMK on PV.  Plaintiff noticed the deposition of the PMK for August 29, 2022.  PV served its objections to the deposition notice on August 24, 2022.  On August 29, 2022, no one appeared for the PMK deposition.  As of the filing date of the motion, PV has not produced a PMK for deposition. 

On June 10, 2022, Plaintiff served the subject deposition notice for Huang on Huang’s counsel, noticing the deposition for June 23, 2022.  Huang did not appear for deposition.  As of the filing date of the motion, Huang has not appeared for deposition

In opposition, Defendants argue Plaintiff will not suffer any prejudice if the PMK and Huang depositions are not held because they have agreed to stipulate that they will not call any witness who failed to appear for their noticed depositions and Defendant Siwei Huang’s negligence was the sole cause of the accident.  The Court does not find the proposed stipulation to be a valid basis to dodge the depositions.  Defendants further argue that Chinese law prohibits the deposition of Huang who is a citizen of and is currently residing in China.  However, this argument was already and disposed of in the hearing for protective order on August 17, 2022 (See Minute Order August 17, 2022.)  Accordingly, the Court grants Plaintiff’s motions to compel the depositions of PV’s PMK and Huang.

1. RFA

Pursuant to Code of Civil Procedure section 2033.280, subdivision (a), “[i]f a party to whom requests or admission are directed fails to serve a timely response…[t]he party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product[.]”  (Code Civ. Proc., § 2033.280, subd. (a).)  Where a party fails to respond to requests for admissions, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.¿ (Code Civ. Proc., § 2033.280, subd. (b).)  

Here, Plaintiff served the RFA on Huang on March 16, 2022, electronically and via personal service.  Huang’s responses were thus due by April 19, 2022.  After receiving a number of extensions, Huang provided unverified responses to the RFA on June 2, 2022.  On June 16, 2022, defense counsel served a verification for the same responses, however the verification was not signed by Huang.  As of the filing date of the motion, Plaintiff has not received verified responses from Huang.  “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court¿(1988) 206 Cal.App.3d 632, 636.)   

In opposition, Huang asserts that his responses are sufficient as no verifications are required for objections.  Huang is correct but the Court notes that Huang’s responses contain both substantive answers and objections (RFA Nos. 1-14, 16-17 and 62-67), and objections only (RFA Nos. 15, 18-61 and 68-85).  Any response to discovery containing objections only must be signed by the responding party’s attorney, and any portion of a response containing fact-specific responses must be verified by the party to whom the written discovery is directed.  (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657; Code Civ. Proc., §§ 2030.250, 2033.240.)  Accordingly, the Court finds Huang has failed to serve timely responses to the RPA regarding RFA Nos. 1-14, 16-17 and 62-67.   

1. SANCTIONS

    

   Plaintiff requests monetary sanctions in connection with the motion to compel deposition of PV’s PMK and the motion to deem the RFAs admitted.  The Court finds Huang’s failure to timely respond to the RPA to be an abuse of the discovery process, warranting monetary sanctions.  (See Code Civ. Proc., §§ 2023.010, subd. (d); 2033.280, subd. (c).). Thus, the Court will impose monetary sanctions against Huang and his attorney of record, Stuart J. Liebman, in the amount of $560, which represents two hours of attorney time to prepare the motion and attend the hearing at $250 per hour, plus the filing fee of $60. 

    

   The Court further finds PV’s failure to present a PMK for deposition to be an abuse of the discovery process, warranting monetary sanctions. (See Code Civ. Proc., §§ 2023.010, subd. (d), 2025.450, subd. (g)(1).)  Thus, the Court will impose monetary sanctions against PV and its attorney of record, Stuart J. Liebman, in the amount of $560, which represents two hours of attorney time to prepare the motion and attend the hearing at $250 per hour, plus the filing fee of $60. 

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motion to compel the PMK for PV to appear for deposition per Code of Civil Procedure section 2025.450, and orders the PMK to appear for deposition within 30 days of notice of the Court’s order, unless Plaintiff stipulates otherwise. 

Further, the Court grants Plaintiff’s motion to compel Huang to appear for deposition per Code of Civil Procedure section 2025.450, and orders the PMK to appear for deposition within 30 days of notice of the Court’s order, unless Plaintiff stipulates otherwise. 

The Court grants, in part, Plaintiff’s motion to deem admitted matters specified in the RFA per Code of Civil Procedure section 2033.280 and ad deems admitted the matters specified in the RFA propounded to Huang as to RFA Nos. 1-14, 16-17 and 62-67 only.  

The Court orders Huang and his counsel of record, Stuart J. Liebman, jointly and severally to pay monetary sanctions in the amount $560 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.

The Court orders PV and its counsel of record, Stuart J. Liebman, jointly and severally to pay monetary sanctions in the amount $560 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.

Plaintiff is ordered to provide notice of the Court’s orders and file a proof of service of such.