Judge Michael P. Linfield, Case 21STCV44727 2023-01-11 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV44727, Date: 2023-01-11 Tentative Ruling

Case Number: 21STCV44727 Hearing Date: January 11, 2023 Dept: 34

SUBJECT: Motion for an Order Compelling the Depositions of the Person Most Knowledgeable of D Park MPH DDS Dental Corporation and David Park to Appear and Testify at their Depositions and Request for Monetary Sanctions of $1,800 Against Defendants and their Counsel

Moving Party: Plaintiff Dulce Santiago

Resp. Party: Defendants D Park MPH DDS Dental Corporation and David Park

Plaintiff’s Motion is GRANTED. Defendant Park and Defendant D Park MPH DDS Dental Corporation’s person most knowledgeable are ORDERED to be made available within 15 days from the issuance of this Order. Sanctions are AWARDED for Plaintiff and against Defendants Park and D Park MPH DDS Dental Corporation, and their Counsel, jointly and severally in the amount of $1,800.00.

Defendants’ Request for Sanction is DENIED.

BACKGROUND:

On December 8, 2021, Plaintiff Dulce Santiago filed her Complaint against Defendants D Park MPH DDS Dental Corporation, D Sangho Park DDS MPH Dental Corporation, Smile Dental Services, Inc., and David Park on causes of action related to Plaintiff’s prior employment by Defendants. The causes of action include allegations of discrimination, retaliation, and other violations of employment law.

On April 12, 2022, Defendants filed their Answer.

On December 16, 2022, Plaintiff filed her Motion for an Order Compelling the Depositions of the Person Most Knowledgeable of D Park MPH DDS Dental Corporation and David Park to Appear and Testify at their Depositions and Request for Monetary Sanctions of $1,800 Against Defendants and their Counsel.

On December 28, 2022, Defendants D Park MPH DDS Dental Corporation and David Park filed their Opposition, which includes a Request for Sanctions in the Amount of $1,600.00 Against Plaintiff’s Counsel.

On January 4, 2023, Plaintiff filed her Reply.

ANALYSIS:

I. Legal Standard

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 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. (Code Civ. Proc., § 2025.280, subd. (a).)

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc., § 2025.230.)

“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.” (Code Civ. Proc., § 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. (Code Civ. Proc., § 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.)

II. Discussion

The issue at hand appears is quite simple. After a defendant has been served or appeared in an action, a plaintiff is entitled to notice the deposition of that defendant without leave of Court. (Code Civ. Proc., §§ 2025.010, 2025.210, subd. (a).) If it is a corporate defendant, Plaintiff is entitled to notice the deposition of the corporate defendant’s person most qualified or knowledgeable. (Code Civ. Proc., § 2025.230.)

Plaintiff moves the Court to (1) order Defendants to submit to depositions within 15 days of the hearing on the Motion and (2) award sanctions against Defendants and Defense Counsel in the amount of $1,800.00 for abuse of the discovery process. (Motion, p. 6:5–10.)

Defendant opposes the Motion, arguing: (1) that Plaintiff has failed to meet and confer; (2) that Plaintiff never requested an informal discovery conference prior to filing the Motion; (3) that Defendants acted with substantial justification and imposition of sanctions would be unjust; and (4) that sanctions should be awarded to Defendant Park and Defense Counsel. (Opposition, pp. 4:19–20, 5:23–24, 6:10–12, 7:3–4.)

The following facts are undisputed:

(1) Plaintiff has on multiple instances noticed the depositions of Defendant David Park (an individual) and D Park MPH DDS Dental Corporation (a corporation), including proposed deposition dates as early as February 8 and 9, 2022;

(2) These depositions have not occurred;

(3) Defendants have not proposed firm dates for the depositions but rather offered an infirm offer of depositions dates in February 2023; and

(4) The Parties’ Counsel have exchanged numerous emails about this topic.

(Motion, pp. 1:24–25, 2:15–16 and Exs. A, C, E, F; Opposition, Decl. Rios, ¶¶ 4–8.)

It has been nearly a year since Plaintiff initially noticed the depositions at issue. Defendants have missed multiple deposition dates and have failed to provide any dates certain for depositions. The Court finds that Defendants’ providing Plaintiff deposition dates for Defendant Park and Defendant D Park MPH DDS Dental Corporation’s person most knowledgeable to be unreasonable.

The Court also finds Defendants’ procedural arguments to be unconvincing. The Parties’ Counsels’ email exchanges are sufficient for the meet and confer requirement. Further, the Court does not have any requirement that the parties must have an Informal Discovery Conference prior to filing a motion to compel. Rather, as Defendant correctly states, the Court’s order says:

“Many discovery disputes are amenable to informal resolution, thereby obviating the time and expense of a formal motion to compel. In such cases, the Court will make every effort to be available for conference calls, video calls, or in-chambers meetings with all counsel…. (D) The Court strongly encourages the parties to schedule an informal resolution of discovery disputes prior to the filing of a motion to compel.” (Opposition, p. 5:25 - p. 6:2.) This is a suggestion, not a requirement.

Regarding sanctions, the Court does not see any evidence that Defendants acted with substantial justification or that sanctions would otherwise be unjust for this misuse of the discovery process. Moreover, Plaintiff’s Counsel’s hourly rate of $450.00 and four hours spent on this Motion (including three hours on the filings and one hour at the hearing) are reasonable. Further, Defendant appears to agree that these sanctions are reasonable, because Defendant itself requested sanctions of virtually the same amount. (See Opposition, p. 7:18-21.)

III. Conclusion

Defendants’ Request for Sanction is DENIED.