SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

Plaintiff, David Jackson Kimball (“Plaintiff”) moves to compel Defendant PNS Stores, Inc., erroneously sued and served as Big Lots Stores, Inc. and Big Lots F&S, Inc., (“PNS”) person most knowledgeable (“PMK”) deposition. Any opposition to the motion was due by August 4, 2023.  To date, no opposition has been filed.   

 

2. Compel Deposition 

CCP § 2025.450(a) provides, “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”  CCP § 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under §2025.410. 

A motion to compel deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” 

Here, Plaintiff’s counsel asserts he noticed the deposition of the PMK multiple times, and that defense counsel stated they would not attend for each deposition. Plaintiff’s counsel contends he attempted to meet and confer with PNS’ counsel for a deposition date, but did not hear back from PNS’s counsel.  

More specifically, Plaintiff initially noticed the PMK’s deposition for January 6, 2022. On December 30, 2021, PNS objected to the deposition notice, averring that PNS’ PMK was unavailable on the date and argued that Plaintiff failed to provide a timely notice of the location of the deposition. On March 15, 2022, Plaintiff noticed a second continuance of taking of the deposition of PNS’ PMK, set for March 26, 2022. The deposition did not move forward, and the third notice of taking of the PMK’s deposition was scheduled for May 26, 2022, the fourth notice scheduled for January 30, 2023, and fifth notice scheduled for April 3, 2023. For all the continued notice of the taking of the PMK’s deposition, defense counsel emailed Plaintiff’s counsel that they were unable to attend the deposition. Lastly, a sixth notice was scheduled for May 24, 2023, and the deposition did not move forward. Plaintiff avers that, to date, PNS’ PMK deposition has not taken place. 

The motion to compel is unopposed and granted.  (CCP § 2025.450(a).)  The PMK of PNS is ordered to appear for deposition at a date, time, and location to be noticed by Plaintiff.  Plaintiff must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service).  Pursuant to CCP § 2025.310, at the election of either Plaintiff or PNS, the deposition must be completed remotely.   

3. Production of Documents 

As to the production of documents included in the deposition notice, Plaintiff does not set forth good cause for the production of any documents.  (CCP § 2025.450(b)(1) [“The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”].)  Plaintiff does not set forth any specific facts to support the request for production of documents.  Therefore, Plaintiff’s motion is denied as to the request for production of documents.    

 

4. Sanctions 

CCP § 2025.450(g)(1) requires the court to impose sanctions unless it finds the deponent acted with substantial justification or there are circumstances that render imposition of sanctions unjust. A court has discretion to award sanctions that are “suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks” but they should not be punitive in nature or levied for the purposes of punishing an offending party. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) Plaintiff requests $3,497.50 in connection with the instant motion.  

Here, the Court awards Plaintiff a total of $400 in attorney’s fees for the instant motion.  Further, Plaintiff is awarded the $60 motion filing fee as costs. The Court declines to award the cost of the April 3, 2023 certificate of non-appearance for the requested amount of $812.50, because PNS’ counsel advised Plaintiff’s counsel on March 31, 2023 that they would not be able to attend that deposition, and offered to pay any late cancellation fees. (Mot. Exh. 8.) Therefore, this certificate of non-appearance was unnecessarily incurred, and potentially already reimbursed.  

Sanctions are sought and imposed against PNS and its attorney of record, jointly and severally.  They are ordered to pay sanctions to Plaintiff, by and through her attorney of record, in the total amount of $460, within twenty (20) days.    

 

Plaintiff is ordered to give notice.   

 

 

Dated this 16th day of August 2023