Judge: Michelle C. Kim, Case: 21STCV27551, Date: 2023-05-18 Tentative Ruling

Case Number: 21STCV27551    Hearing Date: May 18, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Armand Ramirez (“Plaintiff”) moves to compel Defendant Macy’s (“Defendant”) PMK deposition and request for documents.

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.

Plaintiff asserts that on August 23, 2022, Plaintiff served his Notice Deposition of PMK of Defendant and Request for Production of Documents, for October 20, 2022. The Notice stated: “If Defendant is unable to appear on the date of this notice, please provide us, in writing, alternative dates within five days as to when the Defendant can appear for deposition within the next 35 days. If our office does not receive alternative dates within five days of canceling this deposition, we will select a date convenient for Plaintiff’s counsel.” On October 14, 2022, 52 days after Plaintiff served his Notice, Defendant served its Objection to the Notice, along with a meet and confer letter. Defendant objected to Plaintiff’s Notice on the grounds that, “Plaintiff unilaterally set this deposition on a date which neither the deponent or counsel is available.”

That same day, Plaintiff’s counsel’s, Antonio Castillo III (“Mr. Castillo”), law clerk, Hilda Valdez (“Ms. Valdez”) responded to Defendant’s meet and confer letter via email correspondence. Within her email, Ms. Valdez requested Defendant’s counsel provide alternative deposition dates, by October 19, 2022, that fall with the next 20 days. Shortly thereafter, on the deadline provided by Ms. Valdez, Defense counsel sent a follow-up email informing Plaintiff’s counsel that Defendant’s deposition could be set for either November 9, November 10 or November 11. Additionally, within his email correspondence, Defendant’s counsel indicated that if the provided dates did not work for Plaintiff’s counsel, Defendant’s deposition could be set on any subsequent Wednesday, Thursday, or Friday. On October 28, 2022, Ms. Valdez responded to Defendant’s counsel’s email indicating that November 9, 2022, worked for Plaintiff’s counsel, and inquiring whether the date was still available. Immediately thereafter, Defendant’s counsel responded indicating that the date was no longer available as Defendant’s counsel was in trial in Baltimore.

On November 1, 2022, based on the alternative time frame provided by Defendant’s counsel, Plaintiff served his First Amended Notice of Deposition of PMK of Defendant and Request for Production of Documents, for November 16, 2022. Plaintiff’s notice was served via email, and was served upon 5 members of Defense counsel’s firm. Once, again, Plaintiff included language requesting for alternative dates within 5 days if Defendant was unable to produce the requested deponents on the noticed date. On November 16, 2022, Defendant’s Employee(s) and/or PMK(s) did not appear for their deposition, nor did they timely serve a response and/or objection to Plaintiff’s notice. Plaintiff was then forced to take a Certificate of Non-Appearance. Plaintiff incurred $1,395.00 for the failed deposition.

That same day, Ms. Valdez, on behalf of Plaintiff’s counsel, sent a meet and confer email to Defendant’s counsel inquiring about the non-appearance, requesting firm dates for the deposition by November 18, 2022, and reasonably requesting for reimbursement for the court reporter and videographer’s fee. Defendant’s counsel, Tiffany (Esmailian) Sohrabian (“Ms. Sohrabian”), responded shortly thereafter inquiring whether Plaintiff’s counsel had confirmed the deposition with Defendant’s counsel, and further indicating that prior counsel, Arvin Arakelian, was no longer working for Defense counsel’s firm. Additionally, Ms. Sohrabian indicated that Defense would be “happy to meet and confer for a new date for the deposition.” After informing Ms. Sohrabian that the notice was served on several individuals from the firm and was set pursuant to counsel’s representation of available dates, Ms. Sohrabian responded that Defendant would not reimburse Plaintiff for the costs and Defendant would provide alternative dates.

In opposition, Defendant does not deny that the deposition should go forward and has proposed available dates as recently as this month but opposes the motion only as to sanctions. Accordingly, the motion is GRANTED, and the only issue left is 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. 

Based on the above efforts to find an agreeable time to find a deposition date, and the properly noticed deposition set for November 16, 2022 which was a date represented to be available and sent for five members of the firm, the Court finds sanctions warranted. Plaintiff requests sanctions in the amount of $ $6,655.00 ($650/hr. x 8 hrs. + $60.00 filing fee + $1,395 non-appearance fee). (Castillo III Decl., ¶ 20.) The Court will award sanctions at the rate of $300/hr for 5 hours of work, plus the filing fee and non-appearance fee. Accordingly, sanctions are imposed against Defendant and Defendant’s attorney of record, jointly and severally.  They are ordered to pay sanctions to Plaintiff, by and through counsel of record, in the amount of $2,955.00, within twenty (20) days. 

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 18^th day of May 2023