Judge: Michael E. Whitaker, Case: 21STCV09436, Date: 2023-02-28 Tentative Ruling

Case Number: 21STCV09436    Hearing Date: February 28, 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

            Defendants Shawn Allen Hauer and Progressive Equipment Leasing, Inc. (collectively, Defendants) move the Court to compel the appearance of Plaintiff Elen Isakhanyan (Plaintiff) for deposition and to produce the documents and tangible things for inspection and copying as requested in the deposition notice.  Defendants request monetary sanctions in connection with the motion.  Plaintiff opposes the motion.  Defendants 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 June 23, 2022, Defendants served the subject deposition notice on Plaintiff.  Defendants noticed the deposition of Plaintiff for July 15, 2022.  On July 11, 2022, just four days before the scheduled deposition, Plaintiff’s counsel abruptly informed Defendants’ counsel that the deposition could not go forward as Plaintiff had left the country on a family emergency.  As of the date of filing of this motion, Plaintiff has not appeared for deposition. 

In opposition, Plaintiff argues the instant motion is improper and moot.  As of November 18, 2022, Plaintiff has agreed to appear for deposition on February 28, 2023.  (Declaration of Jack Sogoyan, ¶ 3, Exhibit 1.)  Further, on the same day Defendants filed the instant motion, November 21, 2022, Defendants also served an amended notice of Plaintiff’s deposition setting the deposition date on February 28, 2023.  (Declaration of Jack Sogoyan, ¶¶ 4, 5, Exhibits 2, 3.)  Finally, Plaintiff intends to serve a valid written objection to Defendants’ requests for production within the amended deposition notice on or before February 25, 2023.

In reply, Defendants assert that they have been attempting to take the deposition of Plaintiff since June 15, 2022, when Plaintiff’s deposition was initially noticed for July 15, 2022.  Accordingly, Defendants conclude that based on Plaintiff’s history of discovery misuse, and given that trial is a mere 12 weeks away, it is not beyond the boundaries of the Court to order Plaintiff to appear for a deposition she has agreed to attend. 

The Court finds that the most recent November 21, 2022, amended deposition notice, served on Plaintiff before the instant motion to compel, is controlling here and sets Plaintiff’s deposition date as February 28, 2023.  (See Declaration of Jack Sogoyan, ¶¶ 4, 5, Exhibits 2, 3, and 4.)  Because the instant hearing date is before the set deposition date, the Court cannot determine whether or not Plaintiff will appear for deposition and thus cannot determine whether a motion to compel is appropriate.  Accordingly, the Court denies Defendants’ motion to compel Plaintiff’s deposition as premature. 

Based on the prematurity of Defendants’ motion to compel Plaintiff’s deposition, the Court further denies Defendants’ request for monetary sanctions in connection with the motion. 

Further, Plaintiff requests monetary sanctions in connection with the instant motion.   “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it 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., § 2023.030, subd. (a).)  

Here, Plaintiff argues that Defendants engaged in the misuse of the discovery process by Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery” and “making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery,”  (Code Civ. Proc., § 2023.010, subds. (a) & (h).) 

The Court finds that Defendants have unsuccessfully made a motion to compel Plaintiff’s deposition without substantial justification, warranting monetary sanctions as requested by Plaintiff.  Accordingly, the Court will impose monetary sanctions against Defendants and Defendants’ counsel of record, Nicholas W. Davila, Nina L. Hawkinson, and Stephanie A. Folan, of London Fischer LLP, in the amount of $1000, which represents four hours of attorney time to prepare the opposing papers, review the reply, and attend the hearing at $250 per hour.

CONCLUSION AND ORDER

Therefore, the Court denies Defendants’ motion to compel Plaintiff to appear for deposition.

Further, the Court orders Defendants and Defendants’ counsel of record, Nicholas W. Davila, Nina L. Hawkinson, and Stephanie A. Folan, of London Fischer LLP to pay monetary sanctions in the amount of $1000, jointly and severally, to Plaintiff, by and through counsel for Plaintiff, on or before March 28, 2023.

Defendants shall provide notice of the Court’s orders and file a proof of service of such.