Judge: Steven A. Ellis, Case: 22STCV07588, Date: 2023-08-22 Tentative Ruling
Case Number: 22STCV07588 Hearing Date: August 22, 2023 Dept: 29
TENTATIVE
Plaintiff’s motions
to compel the depositions are GRANTED.
Plaintiff’s requests
for sanctions are GRANTED.
Background
On March 2, 2022,
Plaintiff Somora Kamille Spears Jackson (“Plaintiff”) filed a complaint against
Defendants Food 4 Less of California, Inc., Alpha Beta Company, and Does 1
through 50 for general negligence and premises liability regarding an incident
that occurred on July 31, 2020, at a grocery store in Compton, California.
On May 9, 2022,
Defendant Alpha Beta Company (“Defendant”) filed an answer.
On May 25, 2023,
Plaintiff served two deposition notices that are the subject of the two motions
set for hearing: (1) a notice that Plaintiff would take the deposition of
Defendant’s employee Alondra Garcia Carcamo (“Garcia”) by Zoom video conference
on July 18, 2023; and (2) a notice that Plaintiff would take the deposition of
Defendant’s person most qualified (“PMQ”) on 15 topics by Zoom video conference
on July 19, 2023. (Garabedian Decls., ¶ 4
& Exhs. A.)
Defendant served
objections on July 10; the basis of the objections was that Plaintiff “unilaterally
noticed the deposition[s] without prior conference with defense counsel” and
that the witness and defense counsel were not available on the noticed dates. (Id., ¶ 5 & Exhs. B.) Defendant’s counsel quoted a portion of section
6 of the State Bar’s California Guidelines of Civility and Professionalism (the
“Civility Guidelines”) stating that “an attorney should not arbitrarily or unreasonably
withhold consent to [a] request for scheduling accommodations.” (Id., Exhs. B.)
Defendant did not
provide alternative dates for the depositions.
(Id., ¶¶ 6-7.) Garcia and
the PMQ did not appear for their depositions as noticed, and Plaintiff took certificates
of non-appearance. (Id., ¶ 8
& Exhs. D.)
As of the filing
of the motions, Defendant had not provided alternative dates for either deposition. (Id., ¶ 9.) Even as the filing of the oppositions, it
appears that Defendant had still not offered any dates; rather, Defendant’s
counsel states, “I fully intend on producing [Garcia and the PMQ] at a mutually
agreeable date and time for all parties.”
(Yeremian Decls., ¶ 11.)
Plaintiff filed
her motions on July 21, 2023. Defendant
filed oppositions on August 9, and Plaintiff filed replies on August 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.”
(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 must include a meet and confer
declaration. (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).)
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., § 2023.020,
subd. (a).)
Discussion
Plaintiff properly
noticed the depositions of Garcia and the PMQ.
(Garabedian Decls., ¶ 4 & Exhs. A.)
Garcia and the PMQ did not appear for their depositions as noticed. (Id., ¶ 8 & Exhs. D.)
Defendant did
serve timely written objections to the deposition notices. (Id., ¶ 5 & Exhs. B.) The sole ground stated in these objections,
however, was that Plaintiff had not pre-cleared the dates with defense
counsel. (Id., Exhs. B.) Such pre-clearance is not required by the
Code of Civil Procedure. Accordingly, these
were not “valid objection[s]” within the meaning of sections 2025.410 and
2025.450, subdivision (a).
In the objections,
Defendant cited the Civility Guidelines, which provide that an attorney should
not “arbitrarily or unreasonably withhold consent to [a] request for scheduling
accommodations.” (Id., Exhs. B.) There is no evidence that Plaintiff’s counsel
has violated this guideline. This is not
a situation in which, for example, Plaintiff refused to reschedule a deposition
after Defendant’s counsel identified a conflict and promptly offered
alternative dates. To the contrary, Defendant
has never offered alternative dates – even as of the filing of its Oppositions
to these motions, more than two months after the depositions were noticed. (And, indeed, the full sentence of Section 6(b)
of the Civility Guidelines reads, “An attorney should not arbitrarily or
unreasonably withhold consent to a request for scheduling accommodations or
engage in delay tactics.”)
Defendant also
argues in its Oppositions that Plaintiff delayed her own deposition. (Opps. at 2:16-23.) The short answer is that retaliation for the other
side’s sins (whether real or merely alleged) is not a proper objection to
deposition scheduling. And Defendant,
although complaining the multiple times that Plaintiff’s deposition was
rescheduled, concedes in the Oppositions that Plaintiff’s deposition was taken
on May 31, 2023, “with no issue,” two weeks after the date the agreed to and (ultimately)
noticed date. (Ibid.) Here, in contrast, Defendant has not offered depositions
dates even after the filing of motions to compel.
Plaintiff properly
noticed the two depositions at issue, and Defendant did not serve a valid
objection to it. Accordingly, the
motions to compel are granted.
Turning now to the request for sanctions, Defendant argues that
sanctions are not warranted because it was “entitled to object to the
unilaterally set deposition in order to meet and confer and procure ultimately
a mutually agreeable date” for the depositions.
(Opps. at 3:13-15/3:14-16.) On a
different set of facts, where a party objected to dates for a deposition and
then promptly offered alternative dates, the Court might well find (if a motion
were even necessary, which it likely would not be) that the objecting party
acted with substantial justification. That
did not happen here. Defendant did not act
with substantial justification. Accordingly,
the requests for sanctions are granted.
The Court sets the amount of sanctions as $660 per motion,
calculated as 1.5 hours of attorney time per motion at a rate of $400 per hour,
plus the filing fee of $60 per motion.
(See Garabedian Decl., ¶ 10.)
Conclusion
The Court GRANTS
Plaintiff’s motions to compel the depositions.
Defendant is ORDERED to produce Garcia and a PMQ to attend and testify
at their depositions within 30 days of notice of this order and to produce for
inspection at their depositions the documents listed in the deposition notice.
The Court GRANTS
Plaintiff’s requests for sanctions.
Defendant and counsel of record Wesierski & Zurek, LLP are ordered,
jointly and severally, to pay sanctions to Plaintiff in the amount of $660 per
month ($1,320 total) within 30 days of notice of this order.
Moving party is
ordered to give notice.