Judge: Steven A. Ellis, Case: 19STCV28285, Date: 2025-02-05 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: 19STCV28285    Hearing Date: February 6, 2025    Dept: 29

Dominguez v. Burbank Mall Associates, LLC
19STCV28285
Motion to Compel the Deposition of Plaintiff

Tentative

The motion is granted.

The request for sanctions is granted in part.

Background

On August 14, 2019, Jasmine Dominguez (“Plaintiff”) filed a complaint against Burbank Mall Associates, LLC and Does 1 through 100 for negligence and premises liability arising out of an incident in which Plaintiff asserts that she was injured by falling bathroom sink metal.

On August 16, 2019, Plaintiff amended the complaint to name Burbank Town Center as Doe 1.

On December 7, 2020, Plaintiff filed the complaint to name CAPREF Burbank LLC (“CAPREF”) as Doe 2. CAPREF filed an answer on March 9, 2021.

On December 28, 2020, the Court, at the request of Plaintiff, dismissed without prejudice all causes of action in the complaint against Burbank Mall Associates, LLC.

On October 25, 2023, Plaintiff amended the complaint to name Jones Lang Lasalle Americas, Inc. (“JLL”) as Doe 3. JLL filed an answer on January 30, 2024.

On January 30, 2024, Plaintiff amended the complaint to name W.E. O’Neil Construction Company of California (“O’Neil”) as Doe 4.

On March 29, 2024, O’Neil filed an answer to the complaint. On the same day, O’Neil filed a cross-complaint against Raymond Southern California Inc. (“Raymond”) and Roes 1 through 50.

On April 2, 2024, Plaintiff amended the complaint to name Raymond as Doe 5.

On April 24, 2024, JLL and CAPREF filed a cross-complaint against O’Neil, Raymond, and Roes 1 through 50.

On June 6, 2024, the Court dismissed the causes of action asserted in the complaint against O’Neil and Raymond.

On January 8, 2025, Cross-Defendants Raymond and O’Neil (collectively “Cross-Defendants”) filed this motion to compel the deposition of Plaintiff. Plaintiff filed an opposition on January 15, and Cross-Defendants filed a reply on January 29.

Legal Standard

“Any party may obtain discovery … by taking in California the oral deposition of any person, including any party to the action.”  (Code Civ. Proc., § 2025.010.)  Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served. 

“The service of a deposition notice … 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).)

Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280.

Section 2025.450, subdivision (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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.” 

Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied “by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Id., subd. (b).) 

When a motion to compel is granted, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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., subd. (g)(1).) 

In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines “[m]isuses of the discovery process” to include “[f]ailing to respond to or to submit to an authorized method of discovery.”  Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  (Code Civ. Proc., § 2023.030, subd. (a).)

Code of Civil Procedure section 2025.610 provides, in part:

“(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.

(b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.”

Discussion

Plaintiff was deposed in this litigation on July 13, 2022.  On January 3, 2025, Cross-Defendants noticed a second deposition of Plaintiff for January 15, 2025. (Witzman Decl., ¶ 6; see also Exh. 1.) Plaintiff refused to appear, arguing (among other things) that she has already appeared for deposition, and Cross-Defendants have not shown (and cannot show) good cause for a second deposition.

As a general matter, the “one deposition rule” – codified in Code of Civil Procedure section 2025.610 – bars a second deposition of a party absent a showing of good cause (or stipulation of the parties).  But there is more to section 2025.610 than this general rule.  By its plain terms, section 2025.610 bars the taking of a second deposition by any party who noticed the first deposition or who was “served with a deposition notice” for the first deposition.  (Code Civ. Proc., § 2025.610, subd. (a).) 

Here, Cross-Defendants were not parties to the litigation at the time of the first deposition of Plaintiff (they were not named until early 2024).  As there is no evidence that either of the Cross-Defendants was served with the notice for the first deposition of Plaintiff, section 2025.610 does not apply here to bar a second deposition.

Cross-Defendants may notice and take the deposition of Plaintiff as of right.  They need not show good cause or explain, in advance, what questions they will ask.  Of course, in the event that the deposition is conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses Plaintiff, she may at that point seek appropriate relief.  (Code Civ. Proc., § 2025.470.)

Turning to sanctions, the motion to compel has been granted; Plaintiff has not acted with substantial justification, and the imposition of sanctions would not be unjust.  The request is granted in part.  The Court sets sanctions in the amount of $1,545, based on 3 hours of attorney time, multiplied by counsel’s reasonable billing rate of $495 per hour, plus a $60 filing fee.  (See Witzman Decl., ¶ 7.)

Conclusion

The Court GRANTS the motion of Cross-Defendants Raymond-Southern California, Inc. and W.E. O’Neil Construction Co. to compel the deposition of Plaintiff Jasmine Dominguez.

The Court ORDERS Plaintiff to appear for deposition and give testimony under oath at 10:00 am on February __, 2025, by remote video conference.

The Court ORDERS moving parties to provide a link for the deposition to all parties no less than 48 hours in advance of the deposition.

The Court GRANTS IN PART the request for sanctions.

The Court ORDERS Plaintiff to pay monetary sanctions under the Civil Discovery Act in the amount of $1,545 to Cross-Defendants (through counsel) within 30 days of notice.

Moving parties are ORDERED to give notice.