Judge: Michael E. Whitaker, Case: 21STCV36055, Date: 2022-12-15 Tentative Ruling

Case Number: 21STCV36055    Hearing Date: December 15, 2022    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

            Plaintiff Shirlene Gordon (“Plaintiff”) sued Defendants Ralphs Grocery Company dba Ralphs (“Ralphs”) and Michael Goude (“Goude”) (collectively, “Defendants”) based on a slip and fall.

Plaintiff moves to compel the deposition of Goude and Ralphs Person Most Qualified (“PMQ”). Plaintiff also seeks $4,268.91 in monetary sanctions against Defendants and their counsel. Defendants oppose the motion.  Plaintiff replies.

ANALYSIS

As a preliminary matter, the Court notes that Plaintiff’s motion is actually two separate motions: (1) a motion to compel Goude’s deposition; and (2) a motion to compel Ralphs’ PMQ. Therefore, Plaintiff should have filed two separate motions and paid two filing fees. The Court admonishes Plaintiff to follow proper procedure in future cases. The Court will therefore order Defendants to pay an additional $60 in filing fees. (Gov. Code, § 70617, subd. (a).) 

The Court addresses each issue separately.

First, the Court addresses the relief seeking Goude’s deposition. The briefing indicates that Goude has now completed his deposition. Therefore, the only remaining issue is monetary sanctions. Plaintiff proffers evidence that she scheduled a deposition date mutually agreed by the parties only for Defendants to object approximately one week before the deposition date because it was unavailable due to Defendants’ counsel being present at a wedding. Plaintiff attempted to obtain dates certain to schedule Goude’s deposition, but Plaintiff was forced to file this motion to do so.  Goude’s failure to participate in discovery before the motion was filed is an abuse of the discovery process. (See Code Civ. Proc., §§ 2023.010, subd. (d), 2025.450, subd. (g)(1).)

Even if the Court were to excuse the delay to unfortunate scheduling issues, which the Court does not because it credits Plaintiff’s persuasive argument that Defendants’ counsel should have been aware of the wedding and should not offered deposition dates in conflict, the record reveals that Plaintiff attempted multiple times in good faith to schedule this deposition and was ultimately only successful because of the motion. Accordingly, the Court will impose monetary sanctions against Goude and his counsel as calculated below.

Next, the Court addresses the relief seeking Ralphs’ PMQ deposition. As a preliminary matter, the evidence in the record is that the PMQ deposition for the incident has not been completed, even if other PMQ depositions have been completed. Therefore, the Court does not deny the motion as moot. The PMQ motion must be scheduled. Defendants generally argue that Plaintiff did not meet and confer in good faith and brought this motion in bad faith. The Court agrees in part. The Court acknowledges that it is improper form to offer deposition dates as a “first come, first serve” to multiple opposing counsel. There is sufficient evidence in the record that Plaintiff tried to meet and confer about mutually agreeable dates for the PMQ deposition for the incident and the delay was caused in part by Defendants. Nevertheless, the Court finds that the parties could have reasonably worked out the issues without the need for Court intervention. Therefore, monetary sanctions arising out of the PMQ deposition is inappropriate.

Finally, the Court calculates the total amount of monetary sanctions in connection with the motion. The evidence in the record reveals that the delay in scheduling Goude’s deposition is because of how Goude’s counsel communicated with Plaintiff’s counsel. Therefore, monetary sanctions are only appropriate against Defendants’ counsel. The Court will impose monetary sanctions against Goude’s counsel in the amount of $1541.65, which represents four hours of attorney time to prepare the moving and reply papers, and attend the hearing, at $250 per hour, the motion filing fee of $61.65, and the expense related to the certificate of non-appearance for Goude’s deposition taken on April 20, 2022 in the amount of  $480.00.

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion to compel Ralphs PMQ to appear for  deposition, and orders Ralphs PMQ to appear for deposition within 30 days of notice of the Court’s order, unless Plaintiff stipulates otherwise.

Further, the Court orders counsel for Goude to pay monetary sanctions in the amount of $1541.65 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.  

In addition, the Court orders Plaintiff to pay an additional $60 in filing fees to the Clerk of the Court on or before December 30, 2022.  

The Court otherwise denies all other requested relief. 

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