Judge: Serena R. Murillo, Case: 20STCV08329, Date: 2023-03-17 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: 20STCV08329    Hearing Date: March 17, 2023    Dept: 29

TENTATIVE

Defendant Joshua Mahgerefteh’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Billy Colbert is ordered to appear for deposition within 30 days of this order. Defendant’s request for sanctions is GRANTED. Plaintiff Billy Colbert is ordered to pay monetary sanctions in the amount of $754.29 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 June 20, 2022, Defendant served a Notice of Taking Deposition set for July 5, 2022. (Rosser Decl., Exh. A.) Defendant received no objection to the Notice of Taking Deposition. On July 1, 2022, Defense counsel’s office reached out to Plaintiff’s attorney to confirm Plaintiff’s appearance at the deposition on July 5, 2022. Plaintiff’s attorney responded that they had been out of contact with Plaintiff for an extended period of time and suggested Defense counsel take a nonappearance at the scheduled deposition time. (Id., Exh. B.) On July 5, 2022, Defense counsel appeared at the scheduled time for Plaintiff’s noticed deposition. Neither Plaintiff nor his attorney appeared. After 45 minutes, a certificate of nonappearance was taken. (Id., Exh. C.) To date, no further response has been received from Plaintiff’s attorney.

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).)

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 any, let alone substantial, justification for Plaintiff’s failure to appear for deposition. Thus, the Court imposes sanctions against Plaintiff and in favor of Defendant, in the amount of $754.29 ($138 per hour, for two hours, $416.64 for Certificate of Non-Appearance, plus $61.65 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 is ordered to appear for deposition within 30 days of this order. Defendant’s request for sanctions is GRANTED. Plaintiff is ordered to pay monetary sanctions in the amount of $754.29 within 30 days of this order.

Moving party is ordered to give notice.