Judge: Michael E. Whitaker, Case: 20STCV40634, Date: 2023-03-29 Tentative Ruling

Case Number: 20STCV40634    Hearing Date: March 29, 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

MOTION

            Cross-Defendant Douglas Means (Cross-Defendant Means) moves the Court to compel the appearances of Cross-Complainants Natalie Bebejian and Shant Bebejian (collectively, Cross-Complainants) for depositions and to produce documents requested in the deposition notices.  Cross-Defendant requests monetary sanctions in connection with the motion.  Cross-Complainants oppose the motion.  Cross-Defendant replies.

            On March 1, 2023, the Court noted that Cross Defendant Means raised arguments in his reply which were not raised in his original moving papers regarding the deposition notices served on Cross-Complainants on July 12 and 26, 2022, setting the depositions for August 30, 31, and September 1, 2022.  (See Minute Order, March 1, 2023.)  Accordingly, the Court continued the hearing date for the instant motion to March 29, 2023 to allow Cross-Complainants an opportunity to address Cross-Defendant Means’s contentions.   On March 15, 2023, Cross-Complainants filed and served their supplemental opposition.  Cross-Defendant Means has not filed supplemental reply.

ANALYSIS

“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).)

Here, on July 12, 2022, Cross-Defendant Means served amended deposition notices of Cross-Complainants, setting the depositions for August 30, 2022 and August 31, 2022, respectively.  On July 26, 2022, due to an unanticipated scheduling conflict that arose after service of the July 12 deposition notices, Cross-Defendant Means served amended notices of the depositions of Cross-Complainants, setting the depositions for August 31, 2022 and September 1, 2022.  Cross-Defendant Means contends in his reply that both Cross-Complainants failed to attend their noticed depositions on August 31, 2022, and September 1, 2022, and further failed to serve valid written objections to the deposition notices. 

In the supplemental opposition, in regard to the August 31, 2022 deposition, Cross-Complainants contend they did not serve a written objection because it was taken off-calendar by Cross-Defendant Means.  However, though the deposition for Cross-Complainant Shant Bebejian originally noticed for August 31, 2022 was taken off calendar, the deposition of Natalie Bebejian was set for August 31, 2022, as noticed on July 26, 2022, was never taken off-calendar by Cross-Defendant Means.  Cross-Complainants do not address why they failed to serve a valid written objection to Cross-Complainant Natalie Bebejian’s August 31, 2022 deposition, nor why Cross-Complainant Natalie Bebejian failed to attend said deposition.

Next, Cross-Complainants assert that in response to the noticed deposition date of September 1, 2022, multiple parties advised that September 1, 2022 did not work for their calendars.  The Court does not find this to be a valid objection to the subject deposition notice.  Further, an attorney’s notice of unavailability has no legal effect and does not entitle anyone to a continuance. (See Carl v. Superior Court (2007) 157 Cal.App.4th 73, 75.)

Finally, Cross-Complainants highlight that Cross-Defendant Means does not advance evidence of any meet and confer efforts regarding the subject depositions noticed in July, and thus Cross-Defendant Means has failed to comply with the meet the meet and confer requirements of Code of Civil Procedure section 2025.450, subdivision (b)(2).  Courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) Cal.App.4th 424, 433.)  Accordingly, the Court finds sufficient attempts at an informal resolution have been made here to satisfy the requirements of Code of Civil Procedure section 2025.450, subdivision (b)(2). 

Cross-Defendant Means seeks monetary sanctions in connection with the motion. In the supplemental opposition, Cross-Complainants argue sanctions are inappropriate based on Cross-Complainants providing multiple dates for Cross-Complainants’ depositions.   Cross-Complainants additionally argue that Cross-Defendant Means has failed to show he attended at the time and place specified in the deposition notices in the expectation that the deponents’ testimonies would be taken.  The Court does not find Cross-Complainants arguments create a substantial justification for their non-appearance at the noticed depositions. The Court finds Cross-Complainants’ failure to appear for their depositions to be an abuse of the discovery process, warranting monetary sanctions. (See Code Civ. Proc., §§ 2023.010, subd. (d), 2025.450, subd. (g)(1).)  Accordingly, the Court will impose monetary sanctions against Cross-Complainants, and their counsels of record, Keosian Berbian, LLP and Law Offices of Cleidin Z. Atanous, in the amount of $840, which represents four hours of attorney time to prepare the motion and reply papers, and attend the hearings at $180 per hour, plus the motion filing fees of $120, at $60 per motion.[1]

CONCLUSION AND ORDER

Therefore, the Court grants Cross-Defendant Means’s motion to compel Cross-Complainants’ appearance at deposition per Code of Civil Procedure section 2025.450, and orders Cross-Complainants to appear for deposition within 30 days of notice of the Court’s order, unless Cross-Defendant Means stipulates otherwise.

Further, the Court orders Cross-Complainants and their counsels of record, Keosian Berbian, LLP and Law Offices of Cleidin Z. Atanous, jointly and severally, to pay monetary sanctions in the amount of $840, to Cross-Defendant Means by and through counsel for Cross-Defendant Means, within 30 days of the notice of this order.

            Cross-Defendant Means shall provide notice of the Court’s orders and file a proof of service of such.