Judge: Steven A. Ellis, Case: 21STCV01197, Date: 2023-09-28 Tentative Ruling

Case Number: 21STCV01197    Hearing Date: September 28, 2023    Dept: 29

TENTATIVE 

The Court GRANTS Defendants’ motion to compel the Person Most Knowledgeable at Zamora, Inc. to attend, testify, and produce documents at deposition.

The Court GRANTS in part Defendants’ request for monetary sanctions.

Background 

On January 12, 2021, Plaintiff Evgeny Yalanskiy (“Plaintiff”) filed a complaint against Defendants Axel Albin-Lax and Christina Albin-Lax (“Defendants”) asserting causes of action for: (1) strict liability pursuant to Civil Code, Section 3342; and (2) negligence. The complaint alleges that Plaintiff was at a property located at 10809 Hartsook Street, North Hollywood, California 91601 (the “Property”) when two of Defendants’ unleashed dogs ran towards him and viciously attacked him.

On March 11, 2022, Defendants filed a Cross-Complaint against Zanoza, Inc. (“Zanoza”) and Roes 1 through 5.  On May 31, 2022, Defendants filed a First Amended Cross-Complaint against Zanoza and Roes 1 through 5.  In the First Amended Cross-Complaint, Defendants allege that Zanoza owned the Property, that Zanoza rented it to Defendants knowing that they would have dogs on the Property, that Defendants had no knowledge that Plaintiff or anyone else would enter the Property, and that Zanoza permitted Plaintiff, its employee, to enter the Property without telling him that dogs would be present.

On July 27, 2022, Zanoza filed an answer to the Cross-Complaint.

On July 13, 2023, Defendants noticed the deposition of Zanoza for August 1, 2023.  (Flannery Decl., ¶ 3 & Exh. B.)  By agreement of all parties, the deposition was continued to and renoticed for August 23.  (Id., ¶ 5 & Exh. D.)

On August 22, Zanoza’s counsel advised that the representative of Zanoza would not appear for deposition.  (Id., ¶ 6.)  No one representing Zanoza appeared at the deposition.  (Id., ¶ 8.) Defendant’s counsel attempted to contact Zanoza’s counsel to inquire about the non-appearance but, as of the filing of the motion, had not heard from Zanoza’s counsel.  (Id., ¶ 7.)

On August 31, 2023, Defendants filed and served this motion to compel Zanoza to attend and testify at the deposition and to produce the documents set forth in the deposition notice.  Defendants also seek monetary sanctions.

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.”  (Id., § 2025.280, subd. (a).)

Section 2025.230 provides: “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested.  In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” 

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.”  (Id.,  § 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., § 2025.450, 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., § 2025.450, subd. (c).) 

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           

Defendants noticed the deposition of Zanoza, a party to this action.  (Flannery Decl., Exhs. B & D.) Although Plaintiff served an objection, Zanoza did not. Zanoza did not appear at the deposition.  (Id. ¶ 8.)

No party has opposed this motion to compel.

Defendants have satisfied all of the procedural and substantive requirements for their motion for an order compelling Zanoza to appear, testify, and produce documents.  The motion is GRANTED.

Defendants’ request for sanctions is also GRANTED in part.  The Court awards monetary sanctions in the amount of $492.90, calculated as three hours of attorney time, multiplied by counsel’s billing rate of $143.75 per hour, plus a filing fee of $61.65.  (See Flannery Decl., ¶ 8.)

Conclusion

The Court GRANTS the motion to compel.

Zanoza is ORDERED to designate and produce for deposition the person(s) most qualified to testify on the topics set forth in the deposition notice served on or about August 7, 2023 (Exhibit D to the Declaration of Courtney D. Flannery filed with the Court on August 31, 2023).  The deposition shall be taken at 10:00 am on October 12, 2023, through remote means.

Zanoza is further ORDERED to produce at the deposition (electronically) the documents requested in the deposition notice served on or about August 7, 2023 (Exhibit D to the Declaration of Courtney D. Flannery filed with the Court on August 31, 2023).

The Court GRANTS in part Defendants’ request for sanctions.

Zanoza and its counsel of record Joseph W. Kellener are ORDERED, jointly and severally, to pay monetary sanctions to Defendants in the amount of $492.90 within 30 days of notice of this order.

Moving party to give notice.