Judge Ronald F. Frank, Case 21TRCV00085 2023-05-09 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00085, Date: 2023-05-09 Tentative Ruling

Case Number: 21TRCV00085 Hearing Date: May 9, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: May 9, 2023

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CASE NUMBER: 21TRCV00085

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CASE NAME: Aries Global Logistics, Inc. v. Valley of the Sun Cosmetics, LLC, et al.

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MOVING PARTY: Plaintiff, Aries Global Logistics, Inc.

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RESPONDING PARTY: Defendant, Valley of the Sun Cosmetics, LLC

TRIAL DATE: February 26, 2024

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MOTION:¿ (1) Motion to Compel Deposition

Tentative Rulings: (1) Plaintiff’s Motion to Compel PMQ Deposition is GRANTED. The deposition will go forward without regard to when a Second Amended Complaint is filed.

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I. BACKGROUND¿¿

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A. Factual¿¿

On February 5, 2021, Plaintiff, Aries Global Logistics, Inc. (“Plaintiff”) filed a Complaint against Defendant, Valley of the Sun Cosmetics, LLC, and DOES 1 through 50. Plaintiff subsequently DOE’d in Defendants, Ajmal Shehzad and Sofia Shehzad. On September 20, 2022, Plaintiff filed a First Amended Complaint alleging causes of action for: (1) Breach of Written Contract; (2) Declaratory Relief; (3) Injunctive Relief; (4) Breach of the Covenant of Good Faith and Fair Dealing; (5) Quantum Meruit; (6) Account Stated; and (7) Fraud.

Plaintiff notes it engaged in a meet and confer to set VOTS’ PMQ deposition, starting in November 2022. However, Plaintiff asserts that after multiple delays caused by VOTS, VOTS finally agreed to produce its PMQ, Ajmal Shehzad, for deposition on February 24, 2023. At the same time, Plaintiff contends that VOTS had indicated it would potentially file a Demurrer to the FAC, including the fraud cause of action. Plaintiff had agreed to amend the FAC without any unnecessary motion work, but provided that taking the deposition before the amendment would avoid judicial and client resources being spent on any further motion work, because the deposition may narrow the issues in the complaint and streamline this matter. However, Plaintiff notes that after having stipulated to the PMQ deposition, on February 20, 2023, VOTS filed its objection, stating that “Parties can proceed with depositions in this matter once Plaintiff files and serves its second amended complaint to avoid prejudice. Plaintiff argues that VOTS is holding all depositions in this matter hostage, including the PMQ deposition, until an SAC is filed.

Plaintiff notes that since November 2022, Plaintiff has put off the deposition, indicating that the PMK would not be available, or objecting to the deposition notice. As such, Plaintiff now brings this Motion to Compel the Deposition of VOTS’ PMK, Ajmal Shehzad.

B. Procedural¿¿

On April 13, 2023 Plaintiff filed this motion to compel deposition. On April 27, 2023, Defendant, VOTS, filed an opposition to the Motion to Compel Depositions. On May 2, 2023, Plaintiff filed a reply brief.

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¿II. MEET AND CONFER

Plaintiff has met its meet and confer requirements.

III. ANALYSIS¿

A. Legal Standard

Code of Civil Procedure section 2025.450, section (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.”

(Code Civ. Proc., § 2025.450, subd. (a).)

The motion must “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (2).) A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)

B. Discussion

Plaintiff asserts that for months it relied on VOTS’ representations and stipulations with respect to setting this PMQ deposition. However, Plaintiff claims that VOTS’ singular objection – that “Parties can proceed with depositions in this matter once Plaintiff files and serves its second amend complaint to avoid prejudice.” – reveals VOTS’ gamesmanship and bad faith refusal to permit an authorized method of discovery on a schedule the parties had previously agreed upon. Plaintiff also notes that there is no authority supporting Defendant’s position that a deposition must be delayed until after the filing of an amended complaint. Plaintiff argues, rather than refusing to make its PMQ available for deposition, VOTS has the burden “to produce the right witness, and if the particular office or employee designated lacks personal knowledge of all the information sought, he or she is supposed to find out those who do!” (Maldonado v. Sup. Crt., supra, at pp. 1395-96.) In other words, Plaintiff argues VOTS has a duty to “take the ‘game’ element out of trial preparation” (Davies v. Sup. Crt., supra, at p. 299) and not engage in delay tactics.

In VOTS’ extremely short and untimely-filed opposition, it argues that its insistence on having its PMP’s deposition taken after the promised SAC is reasonable. It is not. One could argue that it is to VOTS’ advantage to have its PMQ deposed before the pleadings are finalized. But a plaintiff is entitled to take discovery to enable it to more accurate plead an amendment or to abandon theories that the facts will not support. Although VOTS asserts that this is not gamesmanship, it appears to the Court that it is. There was no stipulation to delay the PMQ nor a request for the Court to regulate the sequence or timing of discovery.

VOTS also asserts that it objects to the document requests sought by the Notice of Deposition because the request did not describe with reasonable particularity the documents sought to be produced. Upon review of the document requests, the Court overrules that objection.

C. Sanctions

Plaintiffs assert that monetary sanctions against Defendant VOTS should be imposed. Plaintiffs request the amount in the sum of $4,200. This total is based on Plaintiff’s counsel claiming to have spent seven and a half (7.5) hours preparing the motion, an anticipated spending of three (3) hours preparing the reply, and the anticipated spending of another hour and a half (1.5) in appearing and arguing the motion. He notes his hourly rate is $350/hr. He notes that Plaintiff has incurred $2,625 in legal fees related to this Motion and will incur an additional $1,050 for the Reply and $525 for the Hearing, totaling $4,200.

IV. CONCLUSION¿¿

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For the foregoing reasons, the Motion to Compel Deposition is GRANTED. Monetary discovery sanctions are awarded against VOTS and its counsel in the amount of $2,500, payable within 30 days.