Judge: Michael Shultz, Case: 22CMCV00554, Date: 2023-05-02 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
TENTATIVE RULINGS -- http://www.lacourt.org/tentativeRulingNet/u
Case Number: 22CMCV00554 Hearing Date: May 2, 2023 Dept: A
22CMCV00554
Jorge Lopez-Aldana v. Boaz Kim
[TENTATIVE] ORDER
DENYING PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF DEFENDANT, BOAZ KIM, AND
REQUEST FOR MONETARY SANCTIONS
[TENTATIVE]
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF EMPLOYEE(S) AND/OR
PERSON(S) MOST QUALIFIED FOR DEFENDANT ARMS TRANS, INC., AND REQUEST FOR
MONETARY SANCTIONS
I.
BACKGROUND
This action arises from a two-vehicle
accident between the parties. Plaintiff alleges claims for negligence and
motor-vehicle negligence. In the first motion, Plaintiff asks for an order to
compel Defendant, Boaz Kim (“Kim”), to appear for his deposition and for an
order imposing monetary sanctions. The second motion seeks an order to compel Defendant,
Arms Trans, Inc. (“ATI”) to designate employee(s) or other persons knowledgeable
(“PMK”) to testify at depositions. As both motions concern the same facts and issues
and simultaneously served deposition notices, the Court will address both
motions in this ruling.
II.
ARGUMENTS
Plaintiff
argues that he has served three notices for Defendant Kim’s deposition and
three notices for Defendant ATI’s deposition. The depositions were cancelled
because of unavailability or because defense counsel did not have all documents
required, although the depositions were subsequently set on dates provided by
defense counsel. Plaintiff has met and conferred with defense counsel without
success.
Defendants argue
that Plaintiff did not meet and confer and refuses to participate in an
informal discovery conference. Defense counsel offered numerous other dates and
has not indicated that Defendants would not be produced. Instead, Plaintiff opted to file these motions.
In reply,
Plaintiff argues that Defendants have not offered substantial justification for
failing to produce Defendants for deposition.
III.
ARGUMENTS
If a party fails to appear for a deposition after service of a
deposition notice, the party giving notice may move for an order compelling the
deponent’s attendance and testimony. (Code
Civ. Proc. § 2025.450(a).) Plaintiff has been attempting to schedule Boaz’s
deposition since January 4, 2023, (Peabody Decl. Ex. 1). Plaintiff served
deposition notices for ATI’s PMKs on January 3, 2023. Boaz was unavailable, and
defense counsel agreed that Boaz’s and the PMK depositions should occur on the
same day or consecutive days. Defense counsel requested alternative dates in
February. (Id., Ex. 5).
On
the day the depositions were scheduled, however, Defense counsel cancelled the
depositions citing the necessity for additional documents that he did not have.
(Id., Ex. 11.) Defense counsel proposed dates in March, and Plaintiff
scheduled the deposition for March 10, 2023. (Id., Ex. 12). On the day
of the deposition, defense counsel called to say the witnesses were not
available and provided dates five days later. (Id., Ex. 13.) However, Plaintiff
would not continue the deposition for the following week. (Id.)
The
motion must be accompanied by a meet and confer declaration, or “when the
deponent fails to attend the deposition … , a declaration stating that the petitioner
has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450.) The only contact from Plaintiff’s
counsel’s office with respect to both Defendants has been with, Melissa Anguiano,
Plaintiff counsel’s calendar clerk. Ms. Anguiano conveyed that Plaintiff’s
counsel, Steven Mazza, would not agree to a continuance, but there is no
evidence Mr. Mazza inquired about the non-appearance. (Plaintiff’s Ex. 14.)
A
good faith effort at an informal resolution must be sincere and “entails something
more than bickering with deponent's counsel at a deposition. Rather, the law
requires that counsel attempt to talk the matter over, compare their views,
consult, and deliberate.“ (Townsend v. Superior Court (1998)
61 Cal.App.4th 1431, 1439.) Here, counsel for the parties did not communicate at all.
The
first deposition date for Boaz was unilaterally set by Plaintiff, and the
notice was served on Boaz at his residence on January 4, 2023, before both Defendants
filed an answer on January 17, 2023. (Plaintiff’s Ex. 1, .pdf page 28). While
Plaintiff may serve a deposition notice at any time that is 20 days after
service of the summons on the Defendants or his or her appearance, whichever
occurs first, it was not unreasonable for Defendants to ask to reschedule as
Defendants had not yet answered the complaint, and the scheduled date was
unilaterally set (with respect to Boaz). (Plaintiff’s Ex. 3; Code Civ. Proc., §
2025.210.)
Plaintiff
served the second deposition notice on February 7, 2023, with a date scheduled
for February 21, 2023, for all Defendants. (Plaintiff’s, Ex. 10.). Defense
counsel reasonably requested a second continuance given defense counsel did not
possess all documents necessary for the deposition; again, Defendants filed their
answer on January 17, 2023. (Plaintiff’s, Ex. 11.) Additionally, Defendants reasonably
offered to pay for the court reporter and interpreter fees given the late
cancellation. (Plaintiff’s Ex. 11, .pdf p. 71.)
While
Defendants provided dates for the March deposition, Defendants were ultimately
unable to appear. Counsel offered dates five days later and stated he “will not
move them again barring death, some serious bodily injury to myself or my
clients or some other catastrophic event.” (Plaintiff’s Ex. 14, .pdf p 83.) Plaintiff’s counsel did not meet and confer
to “inquire about the non-appearance” as required by statute. Emails sent to
Plaintiff’s calendar clerk are not sufficient to establish a sincere effort to
meet and confer.
The
Discovery Act’s “central precept” is that the discovery system is
self-executing and operates without judicial involvement. (Clement v. Alegre (2009)
177 Cal.App.4th 1277, 1291 [99 Cal.Rptr.3d 791].) The rules “should deter the abuse
implicit in carrying or forcing a discovery dispute to court when no genuine
dispute exists.” (Id. at 1292
[italics in original].) Defendants do not
dispute Plaintiff’s entitlement to the requested depositions and have continued
to offer additional dates. (Waterkotte, decl. ¶ 8-9.)
IV.
CONCLUSION
Based
on the foregoing, Plaintiff’s two motions are DENIED. Failing to meet and
confer as required by statute is a misuse of the discovery process. (Code Civ. Proc., § 2023.010 subd. (i).) Accordingly, the Court imposes monetary
sanctions of $275 (1 hour x 275 per hour) against Plaintiff’s counsel,
Carpenter & Zuckerman, and in favor of Defendant Boaz and $275 in favor of
Defendant ATI for fees incurred to prepare each opposition. Plaintiff is
ordered to pay sanctions in 10 days to Defendants. The parties are admonished to comply with
their obligations to meet and confer in good faith to resolve disputes.