Judge Serena R. Murillo, Case 21STCV43569 2022-10-25 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV43569, Date: 2022-10-25 Tentative Ruling

Case Number: 21STCV43569 Hearing Date: October 25, 2022 Dept: 29

Sayed Hadi Khatami v. Bobby Johnson, et al.

Motions to Compel Deposition of Plaintiff and Request for Sanctions filed by Defendant Roberta Pauline Jones

TENTATIVE

Defendant Roberta Pauline Jones’ motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Sayed Hadi Khatami is ordered to appear for deposition on November 7, 2022. Defendant’s request for sanctions is GRANTED. Plaintiff Sayed Hadi Khatami and counsel of record Sam Ryan Heidari and Alberto Daniel Ramos are ordered to pay monetary sanctions in the amount of $542.16, jointly and severally, within 30 days of this order. Plaintiff’s request for sanctions is DENIED.

Legal Standard

CCP section¿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 . . . 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 2025.410(a) provides: “Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.” (Code Civ. Proc., § 2025.410(a).)

CCP 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, y a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿

(Id., § 2025.450(b).)

CCP 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.” (Id., § 2025.450(c).)

CCP section 2023.030(a) provides that “[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.”¿¿Failing to respond¿or to submit to an authorized method of discovery is a misuse of the discovery process.¿ (Id., § 2023.010(d).)

Discussion

On April 5, 2022, Defendant served a notice of deposition for Plaintiff set for June 2, 2022. (Lee Decl., ¶ 3, Exh. B.) On May 25, 2025, Plaintiff served an objection to the deposition because it was unilaterally set. (Id., ¶ 4; Exh. D.) On May 31, 2022, defense counsel served on plaintiff a notice of continuance of taking his deposition for June 7, 2022. (Id., ¶ 6; Exh. F.) Plaintiff’s counsel was not available on that day and served an objection. (Id., Exh. H.) On June 2, 2022, defense counsel served on plaintiff notice of continuance of taking his deposition, set for June 21, 2022. (Id., Exh. I.) Plaintiff’s counsel objected again that he was unavailable. (Id. Exh. J.) After meeting and conferring, Plaintiff’s counsel agreed that July 8, 2022 would work. (Id., ¶ 11; Exh. K.) On June 9, 2022, defense counsel served on plaintiff notice of continuance of taking his deposition. Per the agreement with plaintiff’s counsel, the deposition was continued to July 8, 2022. (Id., Exh. L.) On June 30, 2022, plaintiff served an objection to the deposition notice. The objection did not specify the date of the deposition. For the first time, plaintiff objected on the ground the other named defendants had not appeared in the action and plaintiff did not want to appear for deposition multiple times. (Id., Exh. M.) Defense counsel attempted to meet and confer with Plaintiff’s counsel regarding the objection but did not hear back from Plaintiff’s counsel. Thus, the deposition was continued to August 25, 2022. (Id., Exh. O.) Again, plaintiff served an objection to the deposition notice on several grounds including that “[t]he deposition was unilaterally and arbitrarily set without any prior contact with Plaintiff’s counsel so as to reasonably accommodate the schedules of both Plaintiff and his counsel.” (Id., Exh. Q.) Plaintiff did not appear for deposition. (Id., ¶ 21.)

Plaintiff opposes and contends his counsel provided the following dates as it was the first availability of Counsel and the Plaintiff: November 7, 2022, November 8, 2022, November 9, 2022, and November 11, 2022. These dates were rejected by defense counsel even though he was aware that new counsel, Jarion Chung, Esq., would be appearing on the case and had an interest in the Plaintiff’s deposition. Plaintiff seeks monetary sanctions against Defendant as he argues Defendant filed a frivolous motion and is misusing the discovery process. Plaintiff argues that Defendant’s motion was unnecessary, and that Defendant is requesting an Order for Plaintiff’s deposition on November 7, 2022, which was a date Plaintiff’s counsel offered.

Here, Plaintiff’s objections were that the deposition was unilaterally noticed by defense counsel. Defense counsel, however, attests to and presents evidence of his efforts to request deposition dates from Plaintiff’s counsel as described above. As such, the Court finds that Plaintiff’s served objections were not valid. Moreover, Plaintiff’s counsel has not pointed to any authority for his assertion that he may properly object to sitting for a deposition until all Defendants have appeared.

Therefore, Defendant’s motion is granted. Plaintiff Sayed Hadi Khatami is ordered to appear for deposition on November 7, 2022. Because the motion is granted, Defendant’s request for sanctions is also granted, but in a reduced amount due to the simplicity of the motion. Thus, Plaintiff Sayed Hadi Khatami and counsel of record Sam Ryan Heidari and Alberto Daniel Ramos are ordered to pay monetary sanctions in the amount of $542.16 ($160.17 per hour, for 3 hours, plus $61.65 in filing fees), jointly and severally, within 30 days of this order.

Plaintiff’s request for sanctions is denied. While Plaintiff may have offered the November 7, 2022 date to take his deposition, defense counsel justifiably lost faith that Plaintiff would appear based on the number of times he had previously objected, even after agreeing to a date. Thus, defense counsel’s motion is not frivolous. Further, as defendant points out, Plaintiff’s request for sanctions is procedurally defective because plaintiff did not specify in the notice of the opposition that he was seeking sanctions, who he was seeking to sanction, the type of sanction sought, or the amount of the sanctions.

Conclusion

Accordingly, Defendant’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Sayed Hadi Khatami is ordered to appear for deposition on November 7, 2022. Defendant’s request for sanctions is GRANTED. Plaintiff Sayed Hadi Khatami and counsel of record Sam Ryan Heidari and Alberto Daniel Ramos are ordered to pay monetary sanctions in the amount of $542.16, jointly and severally, within 30 days of this order. Plaintiff’s request for sanctions is DENIED.

Moving party is ordered to give notice.