Judge: Serena R. Murillo, Case: 20STCV06939, Date: 2022-12-15 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: 20STCV06939 Hearing Date: December 15, 2022 Dept: 29
TENTATIVE
Defendant’s Unopposed Motion to Compel Deposition of Plaintiff Shawntel Okonkwo and production of documents is GRANTED.
Plaintiff is ordered to appear for her deposition on a date within thirty (30) days of the date of this Order.
Plaintiff Shawntel Okonkwo and her attorney of record Hesam Yazdanpanah and the Law Offices of D. Hess Panah & Associates are ordered to pay Defendants $800.00 within 30 days of notice of this ruling.
Legal Standard
Code of Civil Procedure 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).)
Code of Civil Procedure section¿2025.450(b) provides:¿“A motion under subdivision (a) shall comply with both of the following:¿
1. The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.¿
2. The motion 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.”¿
(Code Civ. Proc., § 2025.450(b).)
A party can make a valid objection by making personal service of that objection on the party who gave notice of the deposition, three calendar days before the deposition date. “Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.”
Code of Civil Procedure section¿2025.450(c) provides, “(1) If a motion under subdivision (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.” (Code Civ. Proc., § 2025.450(c).)¿
Under Code of Civil Procedure section 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . .¿If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the¿sanction unjust.”¿¿(Code Civ. Proc., § 2023.030(a).) Failing to respond¿or to submit to an authorized method of discovery is a misuse of the discovery process.¿ (Code of Civ. Proc., § 2023.010(d).)¿
Discussion
Defendants state that they served Plaintiff Okonkwo with a notice of deposition on June 2, 2022. (Przybylowski Decl. ¶ 10, Exh. A.) The deposition was set for July 6, 2022. Defendants assert that Plaintiff Okonkwo failed to respond and did not appear at the deposition. (Przybylowski Decl. ¶ 11, Exh. B.) Defendants state that they were told by Plaintiff’s counsel that the deposition was not calendared.
Following a meet and confer to re-set the deposition, Defense counsel served Plaintiff’s counsel an amended notice of deposition, re-setting the deposition for August 4, 2022. (Przybylowski Decl. ¶ 12, Exh. C.) Again, there was no response. When Defense counsel sent the remote link information to Plaintiff’s counsel, Plaintiff’s counsel responded stating that she could not be present, and offered to reschedule on November 15, 16, and 17. (Przybylowski Decl. ¶ 14, Exh. D.) Defense counsel responded that the date was unacceptable because the mediation date was approaching and informed Plaintiff’s counsel that their presence was required. (Przybylowski Decl. ¶ 15, Exh. E.) When Plaintiff failed to show, Defense counsel took another notice of non-appearance and the parties agreed to reschedule to August 17, 2022. (Przybylowski Decl. ¶ 17, Exh. F.)
On August 16, 2022, however, Plaintiff’s counsel stated that they took the deposition off calendar because they had not received the deposition link. (Przybylowski Decl. ¶ 18.) Defense counsel took a third notice of non-appearance. (Przybylowski Decl. ¶ 19.)
The Court finds the motion is properly granted. Despite properly noticed motions and Defense counsel’s meet and confer efforts to try to find a mutually agreeable time, Plaintiff has failed to appear for three deposition dates, or offer reasonable alternative dates for a deposition. Plaintiff and Plaintiff’s counsel’s objections for the two most recent scheduled depositions have been made the day prior to the deposition, and thus are not valid objections because they have not been made three days prior to the deposition. Plaintiff’s deposition is thus properly compelled.
The Court further finds that there is good cause to compel Plaintiff to produce documents in response to the request for production of documents as Defendants’ requests are directly related to the accident, Plaintiff’s liability, and Plaintiff’s damages sustained in the accident. (See Przybylowski Exh. A.)
Defense counsel requests sanctions in the amount of $1,170.00. This amount is calculated at a rate of $185.00 per hour: 3 hours for preparation of the instant motion and meet and confer efforts, 2 hours for review of opposition and drafting a reply, and 1 hour for appearance at the hearing, plus a $60 filing fee. Plaintiff does not argue that Plaintiff or counsel acted with substantial justification that make imposition of the sanctions unjust. The Court grants the request for sanctions, but reduces them by $370.00 because no opposition or reply have been filed. Thus, the Court awards $800.00 in sanctions.
Conclusion
Defendant’s Motion to Compel Deposition of Plaintiff Shawntel Okonkwo and production of documents is GRANTED.
Plaintiff is ordered to appear for her deposition on a date within thirty (30) days of the date of this Order.
Plaintiff Shawntel Okonkwo and her attorney of record Hesam Yazdanpanah and the Law Offices of D. Hess Panah & Associates are ordered to pay Defendants $800.00 within 30 days of notice of this ruling.