Judge: Michael P. Linfield, Case: 21STCV44727, Date: 2023-03-13 Tentative Ruling

Case Number: 21STCV44727    Hearing Date: March 13, 2023    Dept: 34

SUBJECT:         Motion for an Order Compelling Compliance with the Court’s January 11, 2023 Order and Request for Monetary Sanctions

Moving Party:  Plaintiff Dulce Santiago

Resp. Party:    Defendant D Park MPH DDS Dental Corporation

Plaintiff’s Motion is GRANTED in part. The corporate Defendant is ORDERED to make its PMK available for their deposition within 10 days. Plaintiff is allowed up to seven hours to complete the PMK’s deposition.

        The Court awards sanctions of $2,200.00 against the corporate Defendant and its counsel, jointly and severally. These sanctions are to be paid within 30 days.

        Defendant’s request for sanctions is DENIED.

PRELIMINARY NOTE

        The discovery motions filed in this matter indicate a lack of civility between counsel. 

“The timbre of our time has become unfortunately aggressive and disrespectful. Language addressed to opposing counsel and courts has lurched off the path of discourse and into the ditch of abuse. This isn’t who we are.” (In re Mahoney (2021) 65 Cal.App.5th 376.)

"We close this discussion with a reminder to counsel – all counsel, regardless of practice, regardless of age – that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive."  (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537.)

        The Court expects all counsel to familiarize themselves with, and comply with, the Los Angeles Superior Court’s Local Rules, Appendix 3.A:  “Guidelines for Civility in Litigation”

        The Court also notes that defense counsel spends the first page-and-a-half of its opposition discussing how “frivolous” plaintiff’s case is. (See, e.g., Opposition, p. 1:12, p. 1:20, p. 2:10.)  Counsel’s unsupported argument is irrelevant to the discovery motion at hand. 

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 January 11, 2023, the Court ordered that Defendant Park and Defendant D Park MPH DDS Dental Corporation’s person most knowledgeable be made available for deposition within 15 days from the issuance of the Order. The Court also awarded sanctions for Plaintiff and against Defendants and the Counsel, jointly and severally, in the amount of $1,800.00.

On February 16, 2023, Plaintiff filed her Motion for an Order Compelling Compliance with the Court’s January 11, 2023 Order and Request for Monetary Sanctions. Plaintiff concurrently filed: (1) Proposed Order; and (2) Proof of Service.

On February 28, 2023, Defendant D Park MPH DDS Dental Corporation (“the corporate Defendant”) filed its Opposition. The Opposition includes a Request for Monetary Sanctions.

On March 6, 2023, Plaintiff filed her Reply. Plaintiff concurrently filed her Proof of Service.

ANALYSIS:

I.           Legal Standard

“Every court shall have the power to do all of the following . . . (4) To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.” (Code Civ. Proc., § 128, subd. (a)(4).)

“Misuses of the discovery process include, but are not limited to, the following . . . (d) Failing to respond or to submit to an authorized method of discovery . . . (g) Disobeying a court order to provide discovery . . . (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (g), (h).)

“If a motion under subdivision (a) [of Code of Civil Procedure, section 2025.450] is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court 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., § 2025.450, subd. (g)(1).)

“If that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent’s testimony would be taken pursuant to that order.” (Code Civ. Proc., § 2025.450, subd. (h).)

“A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term ‘person’ includes a witness, a party, a party’s attorney, or both. Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.” (Code Civ. Proc., § 177.5.)

II.        Discussion

A.      The Parties’ Arguments

Plaintiff moves the Court to issue another order compelling the deposition of the corporate Defendant’s person most knowledgeable (PMK) within ten days of the hearing on the Motion. (Motion, p. 5:14–16.) Plaintiff further moves the Court to: (1) impose monetary sanctions in favor of Plaintiff and against the corporate Defendant and its Counsel for abuse of the discovery process; (2) an enhancement sanction of $1,500.00 for failure to pay the prior sanction; and (3) progressive sanctions of $500.00 per day for each day Defendants remain in violation of the Court’s order. (Id. at p. 5:16–21.)

The corporate Defendant opposes the Motion and requests monetary sanctions against Plaintiff. (Opposition, p. 7:5–7.) The corporate Defendant argues: (1) that Plaintiff is utilizing the Court’s Order to intimidate and harass Defendants; (2) that Plaintiff’s Request for Sanctions must be denied because the corporate Defendant acted with substantial justification and imposition of sanctions would be unjust; and (3) sanctions are warranted against Plaintiff because Plaintiff has abused the discovery process. (Id. at pp. 4:2–3, 6:1–2, 6:22.)

Plaintiff reiterates her prior arguments and claims that the issue is that Defendants attempted to limit Plaintiff to only a half-day deposition of Defendant Park and a half-day deposition of the corporate Defendant’s PMK. (Reply, p. 3:1–3.)

B.      Discussion

On January 11, 2023, the Court ordered that Defendant Park and the corporate Defendant’s PMK be made available for deposition within 15 days from the issuance of the Order.

According to the evidence submitted: (1) on January 19, 2023, Plaintiff noticed both depositions for January 26, 2023; (2) despite asking Defendants multiple times whether Defendant Park is also the corporate Defendant’s PMK, Plaintiff was notified for the first time on January 24, 2023 that Defendant Park is not the corporate Defendant’s PMK; and (3) after the depositions had been noticed, Defendants only made the PMK available for the morning of January 26, 2023 and Defendant Park available for the afternoon of January 26, 2023. (Motion, Ex. B; Opposition, Exs. 1–6.)

Parties are allowed to take oral depositions of other Parties in the action. (Code Civ. Proc., § 2025.010.) This includes depositions of corporate defendants persons most qualified to testify on their behalf. (Code Civ. Proc., § 2025.230.) Except under specific circumstances outlined by statute, or by court order, “a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony.” (Code Civ. Proc., § 2025.290, subd. (a).)

On the one hand, the corporate Defendant made its person most knowledgeable available for deposition on January 26, 2023, which was within 15 days of the issuance of the Court’s Order dated January 11, 2023. On the other hand, the corporate Defendant failed to answer Plaintiff’s inquiries about whether Defendant Park was the PMK, limiting the deposition to only four hours, not allowing the deposition to be continued on a further date, and not allowing the consideration of later deposition dates after Plaintiff requested later deposition dates.

Given these circumstances, the Court again orders that the corporate Defendant make its PMK available. The Court orders the corporate Defendant to make its person most knowledgeable available for deposition within 10 days of the issuance of this Order. Plaintiff is allowed to spend up to seven hours conducting the PMK’s deposition (although if both parties wish to take the deposition over two or more days, they may so agree).

Plaintiff requests sanctions of $2,700.00 against the corporate Defendant and its counsel for misuse of the discovery process.  (Motion, p. 4:4-11; Barahmand Declaration,¶¶ 14, 16, 17.)  The Court awards sanctions of $2,200.00 ($450/hour x 5 hours). 

It also appears that Defendant has not paid the previous sanctions of $1,800.00 that was ordered to be paid by this Court on January 11, 2023.  However, Defense Counsel declares that these prior sanctions will be paid by the hearing date. (Opposition, Rios Declaration, ¶ 12.) Assuming that these previous sanctions have been paid by the March 13, 2023 Hearing date, the Court will not impose further sanctions.

III.     Conclusion

Plaintiff’s Motion is GRANTED in part. The corporate Defendant is ORDERED to make its PMK available for their deposition within 10 days. Plaintiff is allowed up to seven hours to complete the PMK’s deposition.

        The Court awards sanctions of $2,200.00 against the corporate Defendant and its counsel, jointly and severally. These sanctions are to be paid within 30 days.

        Defendant’s request for sanctions is DENIED.