Judge: Steven A. Ellis, Case: 21STCV36099, Date: 2025-04-17 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: 21STCV36099    Hearing Date: April 17, 2025    Dept: 29

Davtyan v. Ellison
21STCV36099
Plaintiff’s Motion to Compel Depositions of Kristie Hall, Matthew Ellison, and Jacinta Evans

Tentative

The Court will call this matter and speak to counsel.  Counsel must appear (in person or remotely) and may not submit on this tentative.  The Court has questions for counsel.

First, did the depositions scheduled for April 16 and 17 proceed? 

Second, the Court would like to hear from Mr. Nelson why he filed a declaration under penalty of perjury on April 14, 2025, stating (among other things) that the deposition of Ms. Hall was scheduled for April 18 when three days earlier (on April 11) he sent an email to Plaintiffs’ counsel stating that his deposition “will not go forward.”

The Court’s tentative ruling is: (1) to grant the motion as to deponent Hall; (2) to deny the motion as moot as to deponents Ellison and Evans if the depositions of those individuals proceeded on April 16 and 17 (and, if not, to grant the motion as to these deponents as well); (3) to grant in part Plaintiffs’ requests for sanctions; and (4) to order Plaintiffs to pay two additional filing fees to the Clerk of the Court.

Background

On September 30, 2021, Eduard Davtyan and Grigor Davtyan (collectively “Plaintiffs”) filed a complaint against Matthew Ellison (“Ellison”), The Hertz Corporation (“Hertz”), and Does 1 through 10 for general negligence, motor vehicle negligence, and negligent entrustment arising out of an accident on September 30, 2019, at or near the intersection of Sunset Boulevard and Vista Street in Los Angeles.

On January 19, 2022, Ellison and Hertz (collectively, “Defendants”) filed an answer and a cross-complaint against Eduard Davtyan and Roes 1 through 25.

On March 20, 2025, Plaintiffs filed this motion to compel the depositions of Kristie Hall, Matthew Ellison, and Jacinta Evans.  Plaintiffs also seek sanctions.

Defendants filed an untimely, “partial” opposition on April 14.  Plaintiff filed a reply to the partial opposition on April 15.

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).)

The process by which a party may obtain discovery from a person who is not a party to the action is through a deposition subpoena.  (Code Civ. Proc., § 2020.010, subd. (b).) 

“A deposition subpoena may command any of the following: (a) Only the attendance and testimony of the deponent …. (b) Only the production of business records for copying …. (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.” (Code Civ. Proc., § 2020.020.)

A nonparty must be personally served with a deposition subpoena.  (Code Civ. Proc., § 2020.220, subd. (b).)  Service must be completed “a reasonable time” in advance of the deposition and, when documents are requested, “a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce” the documents.  (Id., subd. (a).)

Section 2025.410 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.  (Code Civ. Proc., § 2025.410, subd. (a).)

Section 2025.450 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.” 

(Code Civ. Proc., § 2025.450, subd. (a).)  The motion must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040, “or, when the deponent fails to attend the deposition and produce the documents … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Id., subd. (b)(2).)  The motion must also “set forth specific facts showing cause” for the production of documents.  (Id., subd. (b)(1).) 

When a motion to compel the deposition of a party 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).) 

For the deposition of a non-party witness, if the witness has been subpoenaed and “fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in Section 2020.240 [contempt and an action for civil damages under section 1992].” (Code Civ. Proc., § 2025.440, subd. (b).)

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”  (Code Civ. Proc., § 2025.480, subd. (a).)  “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Id., subd. (b).)

“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.  (Id., subd. (i).)

“[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 compel an answer or production, 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.”  (Id., subd. (j).)  

Except as specifically modified by the Civil Discovery Act, the provisions of Code of Civil Procedure sections 1985 through 1997 apply to deposition subpoenas.  (Code Civ. Proc., § 2020.030.)¿ 

Code of Civil Procedure section 1987.1, subdivision (a), provides: “If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

Code of Civil Procedure section 1987.2, subdivision (a), states, in relevant part, that in connection with an order directing compliance with a subpoena, quashing it, or modifying it, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification.”¿ 

A motion to compel a nonparty to answer questions or produce documents “must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service.”  (Cal. Rules of Court, rule 3.1346.)

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).)

Discussion

The Court begins with four preliminary matters.

First, the Court exercises its discretion to consider the untimely opposition filed by Defendants and Plaintiffs’ reply to that opposition.

Second, although Plaintiffs refer to a deposition of the person most qualified (PMQ) of Defendant Hertz in the caption, memorandum, and supporting declaration, there is nothing about a deposition of Hertz in the notice of motion and motion.  “Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010.)  As Plaintiffs’ notice of motion and motion does not seek an order regarding the deposition of Hertz, the request for an order as to Hertz is denied without prejudice.

Third, it appears that deponent Kristie Hall is an employee of Defendant Hertz and that therefore the service of a deposition notice is effective to require her attendance at a deposition under Code of Civil Procedure section 2025.280.  (See Karapetian Decl., ¶ 5.)

Fourth, it appears that Defendants’ counsel represents non-party witness Jacinta Evans and that, whatever other disputes may exist between the parties, Defendants do not contend that there are any service issues with regard to this deposition.

Turning now to the merits, Plaintiffs have noticed the depositions of Ms. Hall, Ms. Evans, and Defendant Ellison on multiple occasions going back to January 2024., but Defendants did not provide deposition dates.  (Karapetian Decl., ¶¶ 6-10, 12-24 & Exhs. C-G, I-T.) 

In early February 2025, Plaintiffs’ counsel again reached out to Defendants’ counsel for deposition dates.  (Id., ¶ 26 & Exh. U.)  When Defendants did not offer deposition dates, Plaintiffs sent out deposition notices on March 6, setting the depositions of Ms. Hall, Ms. Evans, and Defendant Ellison for March 18-20.  (Id., ¶ 27 & Exh. V.)

Defendants served objections on March 11.  (Id., ¶ 28 & Exh. W.)  In the objections, Defendants state that the deponents and counsel are not available on the noticed date, that the testimony of two of the deponents is “irrelevant”, and that the deponents will be made available “on a convenient date for all parties after Plaintiffs’ depositions.”  (Id., Exh. W.)  The objections state that the deponent will not appear.  (Ibid.)

Counsel exchanged emails on March 17 about these depositions and other issues, but Defendants did not offer deposition dates.  (Id., ¶ 29 & Exh. X.)

Plaintiffs filed this motion on March 20.  On April 2, the Court (among other things) continued the trial date from May 22 to November 5, 2025.

In their untimely partial opposition, Defendants state that immediately after the motion was filed, Defendants offered the three witnesses for deposition as follows: Defendant Ellison on April 16, Ms. Evans on April 17, and Ms. Hall on April 18.  (Nelson Decl. ¶ 4 & Exh. A.)

Plaintiffs point out in their reply, however, that even before Defendants filed their untimely opposition, Defendants had advised Plaintiffs that Ms. Hall was not available for deposition on April 18.  (Karapetian Reply Decl., ¶ 6 & Exh. Y.)

On this record, the motion to compel the deposition of Ms. Hall is granted.  The deposition was properly noticed, and Defendants did not serve a valid or meritorious objection to it.

On this record, the motion to compel the depositions of Mr. Ellison and Ms. Evans is denied as moot.

The request for sanctions is granted in part.  The motion is granted in part, Defendants have not acted with substantial justification, and no other circumstances make the imposition of the sanction unjust.  As the sanctions are being granted under Code of Civil Procedure section 2025.450, subdivision (g)(1), the sanctions are imposed on Defendant The Hertz Corporation, the “party with whom the deponent [Kristie Hall] is affiliated.”  The Court sets sanctions in the amount of $1,400, calculated as based on four hours of attorney time multiplied by a reasonable billing rate of $350 per hour for work of this nature.

Finally, the Court notes that Plaintiffs filed one combined motion for what should have been three separate motions to compel.  Combining discovery motions allows the moving party to avoid paying the requisite filing fees. Filing fees are jurisdictional and it is mandatory for court clerks to demand and receive them. (See Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 460.) Accordingly, Plaintiffs are ordered to pay two additional filing fees in the total amount of $120 to the Clerk of the Court.

Conclusion

The Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion to compel.

The Court DENIES AS MOOT the request to compel the depositions of Defendant Matthew Ellison and Ms. Jacinta Evans.

The Court GRANTS the request to compel the deposition of Ms. Kristie Hall.

The Court ORDERS Ms. Kristie Hall to appear for deposition and answers questions under penalty of perjury on May __, 2025, at ______ a.m/p.m. Pacific Time, by remote technology.  The Court ORDERS Plaintiffs to provide a link for the deposition to counsel for all parties at least 48 hours in advance of the deposition.

The Court GRANTS IN PART Plaintiff’s request for sanctions.

The Court ORDERS Defendant The Hertz Corporation to pay monetary sanctions under the Civil Discovery Act in the amount of $1,400 to Plaintiffs (through counsel) by no later than May 16, 2025.

The Court ORDERS Plaintiffs to pay to the Clerk of the Court additional filing fees in the amount of $120 by no later than May 16, 2025.

Plaintiffs are ORDERED to give notice.