Judge: Michelle C. Kim, Case: 23STCV23671, Date: 2024-09-09 Tentative Ruling

Case Number: 23STCV23671    Hearing Date: September 9, 2024    Dept: 78

I.         BACKGROUND

Plaintiffs Blair Cobb and Adam Eatroff (collectively, “Plaintiffs”) filed a First Amended Complaint against defendants Elsie I. Wynn (“Wynn”), 3557 Stoner, LLC, Thomas James Capital, Inc., Thomas Beadel, and Does 1 to 25 for damages arising from construction and destruction of a stone retaining wall, resulting in loss of use and loss of value of property. The complaint sets forth two causes of action for negligence and nuisance.

Plaintiffs move to compel the deposition of Wynn, arguing that Wunn and her counsel have refused all reasonable meet and confer efforts, and that her counsel continues to assert Wynn has dementia without providing evidence.

In opposition, Wynn, Thomas James Capital, Inc. and Thomas Beadel (collectively, “Defendants”) argue that her condition and age makes her deposition an unreasonable burden, and that Plaintiffs will not agree to take Wynn’s deposition off-calendar.

In reply, Plaintiffs contend this Court denied Defendants’ motion for protective order, and had found that there was no evidence of Wynn’s incompetency.

II.        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).)

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled.¿ (Code Civ. Proc., § 2025.410, subd. (a).)¿ In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice.¿ (Code Civ. Proc., § 2025.410, subd. (c).)

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . 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).)

As for protective orders, the court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may direct that the deposition not be taken at all.¿ (Code Civ. Proc. § 2025.420 (b)(1).)

III.      DISCUSSION

Indeed, this Court had Defendants’ motion for a protective order that Wynn’s deposition not be taken at all, finding that Defendants have not provided sufficient evidence establishing Wynn’s incompetency. (Min. Order, Aug 2, 2024.) As such, Defendants’ objection resting on those grounds is not valid. To date, there remains no medical evidence establishing Wynn’s incompetency, nor is there any evidence that Plaintiffs are attempting to use the deposition to take advantage of Wynn’s “fragile condition and poor memory to coerce her into confessing to liability in relation to a technical construction issue.” (Opp. 6:14-15.) An unsupported accusation is not a demonstration that there has been a “clear abuse of the discovery process,” (Opp. 6:15-16), especially in light of this Court having already denied Defendants’ motion for protective order.

Plaintiffs previously asserted that they are aware of Wynn’s age, and that Plaintiffs will take care in seeking her testimony by having offered to take her deposition at her home. (Min. Order, Aug. 2, 2024.) This assertion that Plaintiffs will depose Wynn at a location most comfortable for her, including at her home, was expressed in the meet and confer efforts between the parties. (Mot. Cosico Decl. ¶ 3; Exh. A.) Thus, the motion will be granted, with those concessions in mind. In terms of the request to compel production of documents, the issue appears to be moot given the parties’ participation at IDC with Judge Feeney, and the stipulation to authenticity and admissibility of documents produced in response to Wynn deposition notice. (Stip. & Order, Aug. 14, 2024.)

Lastly, 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. Here, the Court finds no substantial justification for this continuing issue after Defendants’ motion for protective order had been denied. Plaintiffs here request monetary sanctions against Wynn and her counsel in the amount of $2,2640.85. 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.) The Court will grant monetary sanctions, but not to the full extent requested, as provided below.

IV.       CONCLUSION

Based on the foregoing, the motion to compel Wynn’s deposition is GRANTED. (CCP § 2025.450(a).) The parties are ordered to meet and confer on a date, time, and location most convenient to conduct Wynn’s deposition, and Wynn is ordered to appear for her deposition at a date, time, and location mutually agreed upon by the parties. If Wynn’s counsel does not meaningfully participate in the meet and confer discussion, then Plaintiffs may unilaterally notice Wynn’s deposition and Wynn is ordered to appear for deposition at a date, time, and location at Plaintiffs’ election. However, Plaintiffs must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service).

As for monetary sanctions, Plaintiffs are awarded two hours collectively for the moving papers and reply, and one hour to appear at the hearing, at a requested rate of $400 per hour, for a total of $1,200.00 in attorney fees. Sanctions are imposed against Wynn and her counsel, jointly and severally. Wynn and/or her counsel are ordered to pay sanctions to Plaintiffs, by and through counsel of record, in the total amount of $1,200.00, within twenty (20) days

Moving Party is ordered to give notice.

DATED: September 6, 2024

__________________________

Hon. Michelle C. Kim

Judge of the Superior Court

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 SMCDEPT78@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.