Judge: Steven A. Ellis, Case: 23STCV08684, Date: 2025-01-08 Tentative Ruling
Case Number: 23STCV08684 Hearing Date: January 8, 2025 Dept: 29
Aucoin v. Moftakhar
23STCV08684
Plaintiff’s Motion to Compel Deposition of Defendant
Tentative
The motion is granted.
The request for sanctions is
granted in part.
Background
On April 18, 2023, Plaintiff Jessica Aucoin (“Plaintiff”)
filed a complaint against Defendant Faramarz Moftakhar (“Defendant”) and Does 1
through 25, asserting causes of action for negligence and premises liability
arising out of an incident on December 21, 2021, in which Plaintiff alleges that
she fell at the bottom of a staircase on premises located on Swall Drive in Los
Angeles.
Defendant filed an answer on September 18, 2023.
On December 10, 2024, Plaintiff filed this motion to
compel the deposition of Defendant. Plaintiff also seeks monetary sanctions.
Defendant filed an untimely opposition on December
31. Plaintiff filed a reply on January
2.
Trial
is currently scheduled for April 15, 2025.
“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 included in a deposition
notice, when and where depositions may be taken, and how and when the notice
must be served. A deposition must be “scheduled for at least 10 days after
service of the deposition notice.” (Code Civ. Proc., § 2025.270, subd. (a).)
“The
service of a deposition notice under Section 2025.240 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 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 . . . without
having served a valid objection . . . 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.” (Code Civ. Proc., § 2025.450, subd. (b).)
If a
motion under Code Civ. Proc. § 2025.450(a) is granted “the court shall impose a
monetary sanction . . . in favor of the party who noticed the deposition and
against the deponent or 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]issues of the discovery process” to include “[f]ailing to respond
to or to submit to an authorized method of discovery.” (Code Civ. Proc., §
2023.010, subd. (d).) Where a party or attorney has engaged in the 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
As an initial matter, the Court exercises its
discretion to consider Defendant’s untimely opposition brief. (Cal. R. Ct.,
rule 3.1300(d).)
Since June 2024, Plaintiff has been attempting to
schedule Defendant’s deposition. (Hassid
Decl., ¶¶ 3-14 & Exhs. A-J.) The
parties initially agreed on August 15, but one day before the deposition
Defendant reported that he was ill.
(Id., ¶¶ 3-4.) The parties then
agreed on October 8, but Defendant travelled to Iran and was unavailable. (Id., ¶¶ 5-6.) When no further agreement was forthcoming,
Plaintiff noticed the deposition for December 5, 2024. (Id., ¶¶ 7-12 & Exh. H.) Defendant’s counsel reported that Defendant would
not attend as he was still in Iran and would not return to the United States
until some time in March 2025. (Id., ¶
13 & Exh. I.) Defendant did not
appear for deposition on December 5 and did not serve written objections to the
deposition notice. (Ibid.)
Plaintiff has satisfied all substantive and procedural
requirements for the motion to compel. Plaintiff properly noticed Defendant’s
deposition, Plaintiff made accommodations for Defendant’s schedule, and Defendant
failed to object or appear. The motion to compel is granted.
The Court understands that Defendant is not refusing to
appear for his deposition. Nonetheless,
the Civil Discovery Act requires Defendant to appear for deposition, not simply
to promise to appear at some future date.
The Court also grants the request for sanctions in part.
Given the relatively straightforward nature of a motion to compel a party
deposition, the Court sets sanctions in the amount of $642, based on three
hours of attorney time multiplied by counsel’s reasonable apparent billing rate
of $214 per hour. (See Hassid Decl., ¶ 2.)
Conclusion
The Court GRANTS Plaintiff’s
motion to compel the deposition of Defendant.
The Court ORDERS Defendant to
appear for deposition, produce documents, and provide testimony under oath on February
__, 2025, at 11:00 a.m., via remote video technology.
The Court ORDERS Plaintiff to
provide a link for the deposition to Defendant at least 48 hours in advance of the
deposition.
The Court GRANTS in part
Plaintiff’s request for sanctions.
The Court ORDERS Defendant Faramarz Moftakhar and counsel Law Offices of Scott C.
Stratman, jointly and severally, to pay monetary sanctions under the Civil
Discovery Act in the amount of $642 to Plaintiff (through counsel) within 30
days of notice.
Moving
party is ordered to give notice.