Judge: Steven A. Ellis, Case: 19STCV33752, Date: 2024-03-21 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: 19STCV33752    Hearing Date: March 22, 2024    Dept: 29

Defendants’ Motion to Compel Plaintiff Vida Nikjoo to appear for deposition

Tentative

The motion is granted.

Background

On September 23, 2019, Plaintiffs Sharam Lavian, Leora Lavian, Vida Nikjoo, and Shanin Nikjoo (collectively, “Plaintiffs”) filed a complaint against Scott Urquhart, Tamera Urquhart (collectively Defendants”), and Does 1 through 50 asserting causes of action for motor vehicle negligence and general negligence arising out of an alleged accident on October 1, 2017, on the 101 Freeway near the interchange with the 405 Freeway in Sherman Oaks.  Defendants filed an answer on April 5, 2021.

Shortly after filing their answer in April, Defendants noticed the depositions of all four Plaintiffs.  (Citron Decls., ¶ 2 & Exhs. A.)  Those depositions were taken off calendar by agreement of counsel.  (Id., ¶ 4.)  In March 2022, Defendants renoticed the depositions.  (Id., ¶ 9 & Exhs. G.)  Plaintiffs’ counsel objected to the dates set.  (Id., ¶ 10.)  Defendants requested alternative dates for the deposition, but Plaintiffs did not respond.  (Id., ¶¶ 11-12.)

On February 22, 2023, Defendants renoticed the depositions of the four Plaintiffs for March 7, 2023.  (Id., ¶ 13 & Exhs. J.)  Plaintiffs objected to the deposition dates in an telephone conversation but did not serve a written objection; Plaintiffs’ counsel stated that he was at the time on medical leave.  (Id., ¶ 14.)  Defendants then followed up with Plaintiffs, but no resolution was reached.  (Id., ¶¶ 15-16 & Exhs. K.)

On May 31, 2023, Defendants filed motions to compel the depositions of all four Plaintiffs.  Three of the motions were set for hearing on March 21, and the fourth was set for hearing on March 22.  Defendants seek $60 in sanctions in each motion.

No opposition has been filed.

The motion to compel the deposition of Shahin Nikjoo, initially set for hearing on March 21, was taken off calendar by the moving party on March 19, 2024.

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 or an officer, director, managing agent, or employee of a party 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.

“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.”  (Code Civ. Proc., § 2025.450, subd. (a).)  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).)  “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124. See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).) 

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.”  (Code Civ. Proc., § 2025.450, 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.”  (Id., § 2023.030, subd. (a).)

Discussion

Before the Court for hearing on March 22 is a motion to compel the deposition of Plaintiff Vida Nikjoo.  After at least two prior attempts, the deposition was properly noticed for March 7, 2023.  (Citron Decl., ¶ 13 & Exh. J.)  Plaintiff did not serve a written objection and did not appear for the depositions.  (Id., ¶ 14.)  Defendants inquired about the non-appearance, but no resolution was reached.  (Id., ¶¶ 15-16 & Exh. K.)

Defendants do not need to show anything more.  The motion to compel is granted. 

Good cause has been shown for the requested document production.

The request for sanctions is also granted.  The motion to compel has been granted, and Plaintiff did not act with substantial justification.  The Court understands that Plaintiffs’ counsel has had some health challenges, but as of the time of filing Defendants had been attempting to schedule these depositions for more than two years, and it is not unjust under the circumstances to award the small amount of sanctions requested by Defendants.

As requested by Defendants, sanctions are set in the amount of the $60 filing fee.  (Citron Decl., ¶ 19.)

Conclusion

Defendants’ motion to compel the deposition of Plaintiff Vida Nikjoo is GRANTED.

The Court ORDERS Plaintiff Vida Nikjoo to appear for deposition and produce the requested documents on April 4, 2024, at 10 am by remote videoconference.

The Court ORDERS Plaintiff Vida Nikjoo, and counsel of record Ron A. Rosen Janfaza, jointly and severally, to pay monetary sanctions under the Civil Discovery Act in the amount of $60 within 30 days of notice.

Moving party is ORDERED to give notice.