Judge: Serena R. Murillo, Case: 19STCV17027, Date: 2023-02-27 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 

IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV17027    Hearing Date: February 27, 2023    Dept: 29

TENTATIVE 

Defendant SGD Enterprises’ motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Kayla Alvarez is ordered to appear for deposition within 30 days of this order. The request for sanctions is GRANTED. Plaintiff and counsel of record Javaherian & Ruszecki are ordered to pay monetary sanctions in the amount of $615.20, jointly and severally, within 30 days of this order.

Legal Standard 

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

CCP section¿2025.450(a) provides:¿“If, after service of a deposition notice, a party to the action . . . , 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 . . . 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 . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450(a).) 

CCP section¿2025.450(b) provides:¿“A motion under subdivision (a)… 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.”¿ (Id., § 2025.450(b).) 

Discussion 

On February 10, 2022, Defendant served a Notice of Taking Deposition of Kayla Alvarez set for March 7, 2022. (Motooka Decl., Exh. A.) Defendant received no objection to the Notice of Taking Deposition. When Defendant attempted to confirm the deposition of Kayla for March 7, 2022, Plaintiff’s counsel advised they would not be appearing and would be providing new dates for her deposition. On March 15, 2022, Defendant’s counsel emailed Plaintiff’s counsel and asked for a new date for Kayla’s deposition. (Id., Exh. B.) Defendant received no response. On June 16, 2022, Defendant’s counsel again emailed Plaintiff’s counsel and asked for a new date for Kayla’s deposition. (Id., Exh. C.) Defendant received no response. On July 19, 2022, Defendant served an Amended Notice of Taking Deposition of Kayla Alvarez for August 3, 2022. (Id., Exh. D.) Defendant received no objection to the Notice of Taking Deposition. On August 1, 2022, when Defendant contacted Plaintiff’s counsel to confirm the deposition of Kayla, Defendant was advised that Kayla was not available for her deposition. (Id., Exh. E.) Plaintiff failed to provide an alternate date for Kayla’s deposition. On August 3, 2022, Defendant took a certificate of non-appearance for Kayla’s failure to appear. (Id., Exh. G.)

As Plaintiff was properly served with the notice of deposition, did not object under CCP section 2025.410, and failed to appear, the motion to compel Plaintiff to appear for deposition is GRANTED.  Plaintiff is ordered to appear for deposition within 30 days of this order.

              Sanctions

If a motion under CCP section¿2025.450(a) is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP section¿2025.450(g)(1).)

In opposition, Plaintiff argues she has substantial justification for failing to appear at her noticed depositions, as she is a fourteen-year-old minor and had school commitments. Plaintiff will take a day off of her schooling to appear at her Court ordered deposition, and she states that she is not opposed to having her deposition taken.

Defendant argues that Plaintiff’s opposition is the first time that Plaintiff is claiming Kayla was not produced because of school. Defendant has been trying to take Kayla’s deposition since March, 2022 (nearly a year now) and asked Plaintiff to provide convenient dates for the deposition. Over the past year, there surely had to have been school holidays that Kayla could have been produced for deposition without interrupting her school schedule. Yet, no such date was ever offered by Plaintiff. Only now, six months after this motion was filed, is Plaintiff appearing to be cooperative with getting her deposition on calendar. Although Defendant requests that the entire amount, $1,581.20, be awarded to Defendant as sanctions; at a minimum, Plaintiff should be made to pay the Court Reporter’s Certificate of Non-Appearance Fee and the filing fee for the within motion.

As the motions to compel Plaintiff’s depositions is granted, Defendant’s request for sanctions is granted. The Court finds that there has not been substantial justification to produce Kayla for her deposition in the past year because as Defendant argues, she could have been produced on a school holiday. However, the Court will reduce the amount awarded in sanctions to the cost of the court reporter and filing fees. Thus, the Court imposes sanctions against Plaintiff and counsel of record Javaherian & Ruszecki, and in favor of Defendant, in the amount of $615.20 ($555.20 for Certificate of Non-Appearance, plus $60 in filing fees) to be paid within 30 days of this order.

Conclusion 

Accordingly, Defendant’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Kayla Alvarez is ordered to appear for deposition within 30 days of this order. The request for sanctions is GRANTED. Plaintiff and counsel of record Javaherian & Ruszecki are ordered to pay monetary sanctions in the amount of $615.20, jointly and severally, within 30 days of this order.

Moving party is ordered to give notice.