Judge Michael P. Linfield, Case 21STCV39433 2022-08-19 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV39433, Date: 2022-08-19 Tentative Ruling

Case Number: 21STCV39433 Hearing Date: August 19, 2022 Dept: 34

SUBJECT: Defendants’ Motion to Compel Depositions of Plaintiffs Arturo Hernandez and Lidia Hernandez

Moving Party: Defendants Kingsley 1, LLC, Charles & Cynthia Eberly, Inc. dba The Eberly Company

Resp. Party: None

Defendants Kingsley 1, LLC, Charles & Cynthia Eberly, Inc. dba The Eberly Company’s Motion to Compel Depositions of Plaintiffs Arturo Hernandez and Lidia Hernandez is GRANTED.

Defendants Kingsley 1, LLC, Charles & Cynthia Eberly, Inc. dba The Eberly Company's Request for Monetary Sanctions Against Plaintiffs Arturo Hernandez and Lidia Hernandez in the Amount of $672.50 is DENIED.

I. BACKGROUND

On October 26, 2021, Plaintiffs Arturo Hernandez and Lidia Hernandez filed a complaint against Defendants Kingsley 1, LLC, Charles & Cynthia Eberly, Inc. dba The Eberly Company, and DOES 1 through 100 for the following causes of action:

1. Breach of Contract;

2. Breach of Implied Warranty of Habitability;

3. Breach of Covenant of Quiet Enjoyment;

4. Negligent Infliction of Emotional Distress;

5. Intentional Infliction of Emotional Distress;

6. Unfair Business Practices iIn Violation of CA Businesses & Professions Code Section 12700 et seq; and

7. Premises Liability in Violation of Civil Code Section 1941

On June 20, 2022, the Court granted Areg A. Sarkissian’s Motions to Be Relieved as Counsel to Arturo Hernandez and Lidia Hernandez.

On July 27, 2022, Defendants Kingsley 1, LLC, Charles & Cynthia Eberly, Inc. dba The Eberly Company moved the Court for an order:

1. “Compelling Plaintiffs Arturo Hernandez and Lidia Hernandez to both attend their respective depositions via Zoom upon agreed-upon dates, or dates selected by defense counsel;

2. For monetary sanctions, including attorneys’ fees and costs, in the sum of $672.50, against Plaintiff Arturo Hernandez and Lidia Hernandez, jointly and severally, and in favor of Defendants Kingsley 1, LLC, and Charles & Cynthia Eberly Inc, Dba Eberly Company, payable within twenty (20) days of the hearing of this Motion.” (Motion, p. 2:5-13.)

On August 12, 2022, Defendants filed a notice of non-opposition to note that Plaintiffs Arturo Hernandez and Lidia Hernandez “did not file or serve any opposition to Defendants Kingsley 1, LLC, and Charles & Cynthia Eberly, Inc.’s Motion to Compel Depositions of both Plaintiffs and for Reasonable Sanctions in the Amount of $672.50.” (Notice of Non-Opposition, p. 1:24-26.)

II. ANALYSIS

A. Legal Standard

1. Motion to Compel Deposition

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(CCP § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(CCP § 2025.280, subd. (a).)

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(CCP § 2025.450, subd. (a).)¿The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿(CCP § 2025.450, subds. (b)(1), (b)(2).) “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124.)

Good cause is construed liberally; discovery justification is found where specific facts show the documents are necessary for effective trial preparation or to prevent surprise at trial. (Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 587; [8:787] Motion to Compel Answers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-15.) A lack of an alternative source for the sought information is an important "good cause" factor, but it is not essential. (Id. at 587-88.) A meet and confer declaration under CCP § 2016.040 “shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.)

2. Monetary Sanctions

“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.” (CCP § 2023.030(a).)

B. Discussion

On April 26, 2022, Defendants served deposition notices for Plaintiffs Arturo Hernandez and Lidia Hernandez. (Day Decl., ¶ 3.) On June 2, 2022, Amended Notices of Deposition for Plaintiff Arturo Hernandez and for Lidia Hernandez were served on Plaintiffs. (Day Decl., ¶¶ 6, 7, Ex. B.) Each deposition was to be conducted over Zoom and requested document production. (Id.) Arturo Hernandez’s deposition was to take place on July 6, 2022 at 10:00 AM and Lidia Hernandez’s deposition was scheduled for July 8, 2022 at 10:00 AM. (Id.) Defendants’ counsel attests that he asked Plaintiffs counsel to ensure that Plaintiffs were aware of their respective deposition appointments. (Day Decl., ¶ 11.)

1. Motion to Compel Deposition of Arturo Hernandez

Plaintiff Arturo Hernandez failed to appear for his July 6, 2022 Zoom deposition, without communicating his absence in advance to opposing counsel. (Day Decl., ¶ 12.) Defendants’ counsel took a Certificate of Nonappearance and emailed Arturo Hernandez to request his help in securing alternate deposition dates. (Day Decl., ¶¶ 13, 14, Ex. E.) Arturo Hernandez did not respond. (Day Decl., ¶ 15.) No written objections to this deposition were served on Defendants. (Day Decl., ¶ 18.)

The Court finds that the procedural requirements for the instant motion have been satisfied. Further, good cause exists for the motion because relevant documents important to trial preparation on the habitability concerns central to this dispute have been requested.

2. Motion to Compel Deposition of Lidia Hernandez

Plaintiff Lidia Hernandez failed to appear for her July 8, 2022 deposition, without communication with Defendants’ counsel. (Day Decl., ¶ 17.) Defendants’ counsel took a Certificate of Nonappearance. (Day Decl., ¶ 18.) No written objections to this deposition were served on Defendants. (Day Decl., ¶ 18.)

3. Monetary Sanctions

The motions to compel are unopposed. Both defendants are currently without counsel. The Court declines to issue monetary sanctions.

III. CONCLUSION

Defendants Kingsley 1, LLC, Charles & Cynthia Eberly, Inc. dba The Eberly Company’s Motion to Compel Depositions of Plaintiffs Arturo Hernandez and Lidia Hernandez is GRANTED.