Judge: Stephen Morgan, Case: 21AVCV00846, Date: 2022-12-15 Tentative Ruling

Case Number: 21AVCV00846    Hearing Date: December 15, 2022    Dept: A14

Background

 

This is a conversion action that has been consolidated with a premises liability action.

 

On October 21, 2021, 720 Degrees, Inc. (“720 Degrees”) filed its Complaint alleging two causes of action for Negligence and Conversion. 720 Degrees, Inc. alleges that on or about January 11, 2021, it transported and delivered its Piper Arrow II aircraft (“the Plane”) to High Desert Avionics, Inc. (“HDA”) to install a new autopilot avionics device and upgrade a GPS avionics device into the aircraft and that on or about February 24, 2021, 720 Degrees was advised by HDA that the installation of the avionics devices into the aircraft was almost completed and that Plaintiff could come to the facility on February 26, 2021 to pay for the avionics work and take pack possession of the Plane. Plaintiff further alleges that prior to pick up on the morning of February 26, 2021, a fire started in the workshop which spread to the adjoining hanger in which Plaintiff’s Plane had been stored leading to the Plane being (1) damaged and (2) towed out of HDA's hanger. Following this, 720 Degrees alleges that beginning on or about August 30, 2021, 720 Degrees orally demanded the return and access to the Plane, but defendants HDA and failed and refused, and continue to fail and refuse, to return the personal property to 720 Degrees or allow 720 Degrees any access to that property.

 

On November 23, 2021, HDA filed its Complaint against County of Los Angeles (“COLA”); American Airports Corporation; Barnes Aviation, and Shouling & Philip Enterprise, Inc. HDA alleges that on or about February 25, 2021, COLA and American Airports Corporation had the duty to maintain General William J. Fox Airfield in Lancaster (the “Subject Premises”) in a safe condition so that third parties, including HDA, were not exposed to substantial danger of electrical fire even though they were using the Subject Premises in a foreseeable manner with due care; that COLA and American Airports Corporation breached their duty by permitting a dangerous condition to exist (i.e., substandard electrical wiring and systems that were unreasonably left operating long past their safe lifespans), that COLA and American Airports Corporation had notice of the dangerous condition for a sufficient time prior to the incident to have taken measures against the dangerous condition; and this was duty was breached leading to the electrical fire that occurred on February 25, 2022. HDA alleges the same facts as to Barnes Aviation and Shoulding & Philip Enterprise, Inc.

 

On January 05, 2022, Shouling & Philip Enterprise dba Barnes Aviation, LLC (“Barnes Aviation”) filed its Answer to HDA’s Complaint as well as a Cross-Complaint against Roes 1 through 100.

 

On January 21, 2022, COLA filed its Answer to HDA's Complaint.

 

On January 21, 2022, American Airports Corporation filed its Answer to HDA's Complaint.

 

On July 28, 2022, the Court granted HDA’s Application for Good Faith Settlement between HDA and 720 Degrees.

 

On November 17, 2022, HDA filed this Motion Compel Deposition of the Person Most Qualified for the County of Los Angeles, Request for Production of Documents, and Request for Sanctions (“Motion to Compel”).

 

On December 02, 2022, COLA filed its Opposition.

 

ON December 06, 2022, HDA filed its Reply.

 

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Legal Standard

 

Standard for Compelling Deposition of Person Most Qualified (“PMQ”) – “Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Cal. Code Civ. Proc., § 2025.010.) 

 

“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action . . . to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280, subd. (a).) 

 

“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.” (Cal. Code Civ. Proc., § 2025.410(a).) 

 

“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, . . . the party giving the notice may move for an order compelling the deponent's attendance and testimony . . . .” (Cal. Code Civ. Proc. § 2025.450(a).) “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[; and] ¶(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.” (Cal. Code Civ. Proc.§ 2025.450(b).) 

 

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Meet and Confer Requirement – A motion seeking to compel a deposition “shall be accompanied by a meet and confer declaration under Cal. Code Civ. Proc. § 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.” (Cal. Code Civ. Proc. § 2025.450(b)(2).)  

 

Counsel for HDA, William A. Daniels, Jr. (“Daniels Jr.”) presents that counsels have attempted to meet and confer since July 21, 2022 via email and Informal Discovery Conference (“IDC”). (Decl. Daniels Jr. ¶¶ 1-18.) It appears that at the last meet and confer attempt, counsel for COLA, Arthur Willner (“Willner”), provided the names of two individuals that have been identified as potential deponents. (Decl. Daniels, Jr. at ¶ 18.) It appears no final resolution was reached.

 

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Discussion

 

Application – HDA presents the following timeline;

 

 

(Decl. Daniels, Jr. [Nov. 08, 2022 IDC conference information provided by court records as it was not mentioned in Daniels, Jr.’s declaration].)

 

HDA argues that COLA has failed to object or produce any responsive document to HDA’s deposition notice and, under Cal. Code Civ. Proc. § 2025.410(a), all objections are waived and the party giving 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.

 

COLA does not take issue with the factual chronology set forth in HDA's Motion to Compel. COLA concedes that HDA's Motion to Compel accurately outlines the communications between counsel and the court hearing relating to the issues at hand. Despite this, COLA opposes the Motion to Compel as it believes that the Motion to Compel was unnecessary as (1) COLA has not objected to producing a PMQ deponent and Willner has repeatedly advised HDA’s counsel and this Court that the Los Angeles County Fire Department is reviewing its records to determine which fire inspector would be most suitable to testify as the County’s witness on this issue, and (2) a fill blown motion with nineteen (19) attached exhibits was not needed as this motion could have been accomplished by stipulation. COLA also opposes on the basis of sanctions, discussed infra.

 

HDA, in reply, highlights that COLA has had six months to designate a PMQ and that the Motion to Compel, with its nineteen (19) exhibits is necessary to give the Court a full sight picture of how many times Plaintiff has attempted to work out a solution with COLA that would not require the Court ordering COLA to perform.

 

There is no dispute that COLA has not produced a PMQ for deposition. The Code is clear – “[i]f, 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, . . . the party giving the notice may move for an order compelling the deponent's attendance and testimony . . . .” (Cal. Code Civ. Proc. § 2025.450(a).)

 

Accordingly, the Motion to Compel is GRANTED.

 

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  1. Sanctions

 

HDA requests sanctions in the amount of $3,323.46 [2.5 hrs @ $850.00/hr + $61.65 filing fee] to cover the costs of the motion. Based on the declaration, the Court is unsure as to where the remaining $1,075.16 requested stems from as it calculates 2.5 hrs @ $850.00/hr + $61.65 filing fee as totaling $2,186.65. Perhaps Daniels, Jr. intended to include the amount of time he spent meeting and conferring with Willner; however, this is not expressed in his declaration.

 

COLA objects to the sanctions as it believes that Daniels, Jr.’s experience combined with the fact that this is a relatively simple negligence case does not warrant the amount of sanctions requested. That is, Daniels, Jr. is requesting an amount that is not consistent with rates charged by attorneys with similar experience in similar cases in Southern California.

 

Daniels, Jr. argues that his rate is reasonable as it was established via his retainer with HDA and that the requested sanctions are necessary to motivate COLA's willingness to participate in the judicial process.

Cal. Code § 2025.410 provides that “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice, 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.”

 

The Court imposes a sanction of $750.00 on COLA alone as it has been presented that Willner has been in constant contact with HDA and his client, COLA, in order to establish dates for the PMQ deposition.

 

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Conclusion

 

Plaintiff High Desert Avionics, Inc.’s Motion to Compel Deposition of the Person Most Qualified for the County of Los Angeles, Request for Production of Documents, and Request for Sanctions is GRANTED.

 

Defendant County of Los Angeles is ordered to have their Person Most Qualified appear for deposition, with the requested documents, within 30 days of this Court Order.

 

Sanctions in the amount of $750.00 are imposed on County of Los Angeles.