Judge: Michelle C. Kim, Case: BC659877, Date: 2023-04-03 Tentative Ruling

Case Number: BC659877    Hearing Date: April 3, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

On May 2, 2017, Plaintiff Hector Javier Pena filed this action against Inter Stone Tools, Inc. (“Inter Stone”) and Luigi Interlandi (“Luigi”) for injuries Plaintiff sustained when acetone ignited and exploded near Plaintiff.  Plaintiff was in the scope of his employment with defendants when the incident occurred.  The incident allegedly occurred on August 23, 2016, and Plaintiff filed the complaint on May 2, 2017.  On May 15, 2017, Plaintiff filed Amendments to Complaint naming Marina Interlandi (“Marina”) (collectively, with Luigi, the “Interlandis”) as Doe 1 and naming Kevin Moda (“Moda”) as Doe 2.  On September 19, 2019, Plaintiff filed a Request for Dismissal dismissing Inter Stone and Moda without prejudice.

At this time, Plaintiff moves to compel the depositions of defendants Luigi and Marina.  Defendants filed an opposition to the motion, and Plaintiff filed a reply. 

Plaintiff asserts that he has made several attempts to schedule the Interlandis’ depositions, but the Interlandis’ counsel has ignored Plaintiff’s attempts to do so.  Plaintiff provides that he noticed Luigi’s and Marina’s depositions for September 20 and 21, 2022, respectively, but defense counsel claimed the depositions had to be rescheduled because of a trial conflict.  Plaintiff asserts he attempted to reschedule the Interlandis’ depositions, but they have refused to appear. 

In opposition, the Interlandis contend that Plaintiff did not properly meet and confer before filing the instant motions, and that the September 20 and 21, 2022 depositions had to be rescheduled because defense counsel was set to begin a long cause trial that week.  The Interlandis then provide that the trial was continued, but on September 20, 2022, defense counsel emailed Plaintiff’s counsel to inform them that defense counsel’s mother-in-law was in the ICU, so the depositions would need to be continued.  The Interlandis argue that the motions are procedurally flawed and should be denied. 

In reply, Plaintiff contends that he has made multiple attempts to to secure the Interlandis’ depositions, but that they have failed to provide available dates or appear for deposition.  Further, Plaintiff requests terminating sanctions against the Interlandis for their failure to take part in the litigation process and pay previously imposed monetary sanctions. 

2. Motions to Compel Defendants’ 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.”  (CCP § 2025.450(b)(2).)

            a. Luigi Interlandi

Plaintiff’s evidence shows that Plaintiff originally noticed Luigi’s deposition for September 20, 2022.  (Mot. Exh. A.)  After the Interlandis’ counsel stated he had a trial conflict, and after defense counsel failed to provide alternative dates, Plaintiff re-noticed Luigi’s deposition for November 16, 2022.  (Mot. Exh. E.)  However, Luigi informed Plaintiff he could not appear for the deposition.  To date, Luigi’s deposition has not gone forward.   

Plaintiff attempted to meet and confer with Luigi’s counsel multiple times regarding scheduling his deposition, but Luigi has not provided available dates or otherwise appeared for his deposition.  In opposition, defense counsel provides that he had a trial conflict that has prevented the deposition from going forward.  Notably, no case information, such as the case number, is provided for any of the other actions defense counsel was engaged in trial in.  While the Court empathizes with defense counsel’s family circumstances, no explanation is given for why the deposition still has not been scheduled or gone forward.  The evidence shows that Plaintiff served multiple deposition notices on Luigi, and Luigi has failed to appear for his deposition. 

Therefore, the motion to compel is granted.  (CCP § 2025.450(a).)  Defendant Luigi Interlandi is ordered to appear for deposition at a date, time, and location to be noticed by Plaintiff.  Plaintiff must give at least five days’ notice of the deposition (notice extended per Code if by other than personal service).  

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. 

As to the request for terminating sanctions, Plaintiff does not establish terminating sanctions are proper at this time, as terminating sanctions for the failure to pay monetary sanctions are not appropriate, and there is no evidence that Luigi otherwise failed to comply with a previous court order concerning discovery. 

However, as to the request for monetary sanctions, sanctions are warranted.  Plaintiff requests 1.5 hours for preparing the motion at $185 per hour, for a total attorney fees award of $277.50.  (Mot. Compel Luigi Depo. Decl. Tabone ¶ 11.)  Sanctions are sought and imposed against Luigi and Luigi’s attorney of record, jointly and severally.  They are ordered to pay sanctions to Plaintiff, by and through its attorney of record, in the total amount of $277.50, within twenty days. 

                        b. Marina Interlandi

            Plaintiff’s counsel’s declaration filed with the motion to compel Marina’s deposition is not signed under penalty of perjury.  Consequently, Plaintiff did not file a meet and confer declaration with the motion.  The motion therefore does not comply with CCP § 2025.450(b)(2). 

            Based on the foregoing, the motion is denied.  The denial is without prejudice to Defendant re-filing the motion with a properly executed meet and confer declaration. 

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• The Court is not available to hear oral argument on this date.  If the parties do not submit on the tentative and want oral argument, the hearing will have to be continued, and the parties must work with the clerk to find an available date for the continuance.
• 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 3^rd day of April 2023