Judge: Teresa A. Beaudet, Case: BC650876, Date: 2022-10-14 Tentative Ruling

Case Number: BC650876    Hearing Date: October 14, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On February 16, 2017, Plaintiffs Wild Chang (“Chang”) and Kenneth Lo (“Lo”) filed the lead action against Defendants Farmers Insurance Company, Inc. (“Farmers”), Fire Insurance Exchange (“FIE”), Stacy Chern Insurance Agency (“Chern Insurance”), and Stacy Chern (“Chern”).

On January 28, 2021, Chang, Lo, and Wild Chang, Jr. (collectively, “Plaintiffs”) filed the second action against Farmers, FIE, Chern, and Woolls Peer Dollinger & Scher (“WPDS”). The operative Third Amended Complaint (“TAC”) in the first action was filed on July 19, 2021, and the two cases were subsequently consolidated.[1] In the TAC, Plaintiffs allege causes of action for (1) fraud, (2) tortious breach of implied covenant of good faith and fair dealing, (3) breach of contract, (4) unfair business practices, (5) professional negligence, and (6) emotional distress, arising out of an insurance coverage dispute.[2]

On March 22, 2022, FIE served a Notice of Deposition of Plaintiff Wild Chang and a Notice of Deposition of Plaintiff Kenneth Lo (the “Deposition Notices”). (Zapf Decl., ¶ 2,       Ex. A.) Per the Deposition Notices, Chang’s deposition was noticed for April 6, 2022, and Lo’s deposition was noticed for April 7, 2022. (Ibid.) On April 4, 2022, FIE’s counsel sent a letter to Chang and Lo indicating that they did not receive any objections to the Deposition Notices. (Zapf Decl., ¶ 3, Ex. B.) On April 4, 2022, Plaintiffs emailed FIE’s counsel indicating that Chang would not be available for deposition on April 6, 2022, and Lo would not be available for deposition on April 7, 2022. (Ibid.)

On April 12, 2022, FIE’s counsel emailed Chang and Lo regarding their availability for their respective depositions. (Zapf Decl., ¶ 4, Ex. C.) Plaintiffs responded on April 13, 2022 stating “[w]e are in the process of retaining counsel. You should expect a call from our counsel.” (Ibid.) On April 13, 2022, FIE’s counsel requested Chang and Lo’s availability to participate in an IDC regarding their failure to provide available dates for the depositions. (Ibid.) On April 26, 2022, FIE’s counsel again wrote to Chang and Lo requesting available dates for their depositions, but Chang and Lo did not respond. (Ibid.)  

On June 14, 2022, the parties participated in an Informal Discovery Conference (“IDC”). The Court’s June 14, 2022 minute order provides, “Plaintiff Lo and Defendant Farmers have fulfilled their IDC obligation. Defense may pursue a motion to compel deposition of plaintiffs.”

            FIE now moves for an order compelling Chang and Lo to appear for oral depositions. FIE also seeks sanctions. Plaintiffs oppose. 

Discussion

Code of Civil Procedure section 2025.450, subdivision (a) 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 of Civil Procedure section 2025.450, subdivision (b) provides:

            “A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

The Court finds that proper deposition notices were served on Chang and Lo. (Zapf Decl., ¶ 2, Ex. A.) In addition, FIE provides evidence that Chang and Lo did not serve objections to the Deposition Notices. (Ibid.)  

In the opposition, Plaintiffs assert that the instant motion is “unnecessary and duplicates earlier motions.” (Opp’n at p. 6:9-10.) However, Plaintiffs fail to identify any such earlier motions. Plaintiffs also argue that “Defendants’ motion to compel needlessly risks manufacturing issues beyond the dispute as sued in TAC.” (Opp’n at p. 7:21-22.) The Court does not see how FIE taking the depositions of Chang and Lo, plaintiffs in this matter, would “manufacture issues beyond the dispute.” The Court agrees with FIE that Plaintiffs’ opposition presents no grounds for denying the instant motion to compel.  

In light of the foregoing, the Court grants FIE’s motion to compel the depositions of Chang and Lo.

Lastly, FIE seeks sanctions and indicates that it incurred $1,466.15 in connection with the instant motion. (Zapf Decl., ¶ 7.) FIE notes that “[m]isuses of the discovery process include, but are not limited to…(d) Failing to respond or to submit to an authorized method of discovery.” (Code Civ. Proc., § 2023.010, subd. (d).) The Court notes that a monetary sanction may be imposed against one engaging in the misuse of the discovery process. (Code Civ. Proc.,              § 2023.030, subd. (a).) The Court finds that FIE has demonstrated good cause for sanctions and that $1,466.15 is a reasonable amount.

Conclusion

Based on the foregoing, FIE’s motion to compel the depositions of Chang and Lo is granted. The Court orders Chang and Lo to appear for their respective depositions on ____________ at ____ a.m.

The Court orders Chang and Lo to pay $1,466.15 in monetary sanctions to FIE within 30 days of the date of service of this Order. 

FIE is ordered to give notice of this Order.

DATED:  October 14, 2022                           ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court