Judge: Theresa M. Traber, Case: 19STCV16926, Date: 2023-10-30 Tentative Ruling

Case Number: 19STCV16926    Hearing Date: October 30, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     October 30, 2023                                           TRIAL DATE: TBD

CASE:                         David J. Randall, et al. v. Karine Gasparian, et al.

CASE NO.:                 19STCV16926           

MOTION TO COMPEL DEPOSITION; REQUEST FOR SANCTIONS

MOVING PARTY:               Plaintiffs David Randall and Mary M. Zakrasek Randall

RESPONDING PARTY(S): No response on eCourt as of 10/25/23

CASE HISTORY:

·         05/15/19: Complaint filed.

·         12/31/19: First Amended Complaint filed.

·         01/08/20: Cross-Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for trespass. Plaintiffs allege that Defendants trespassed on their property and performed unauthorized and illegal modifications to the property while renovating an adjacent property.

Plaintiffs move to compel the deposition of Defendant Armen Gasparian, and for sanctions.

TENTATIVE RULING:

Plaintiffs’ Motion to Compel Deposition is GRANTED.

            Defendant Armen Gasparian is ordered to appear for deposition and produce all documents responsive to the categories identified in the August 9, 2023 deposition notice at a time and place of Plaintiffs’ choosing within 30 days of this order.

            Plaintiffs’ request for sanctions is GRANTED in the amount of $2,692.50. Payment is to be made within 30 days of this order.

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DISCUSSION:

Plaintiffs move to compel the deposition of Defendant Armen Gasparian, and for sanctions.

Meet and Confer

A motion to compel a deposition must include a meet and confer declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc. §§ 2025.450(b); 2016.040.) 

The declaration of Sean M. Bryn states that Plaintiff’s counsel met and conferred with Defendant via email and telephone between August 30 and September 5, 2023. (Declaration of Sean M. Bryn ISO Mot. ¶¶ 5-6.) The declaration states that on September 5, Defendant left Plaintiff’s counsel a voicemail message stating that former defense counsel would reach out to schedule a deposition date for Defendant, but no further communication was received after that date. (Id. ¶ 6.) The Court therefore finds that Plaintiffs have satisfied their statutory meet and confer obligations.

Notice of Motion

            Plaintiffs do not set forth in the Notice of Motion the statutes or other authority under which they are seeking the relief requested in this motion. As the operative authority, Code of Civil Procedure section 2025.450, is referenced extensively throughout the included Memorandum of Points and Authorities, however, the Court will address the motion on its merits.

Deposition and Document Production

Plaintiffs move to compel the deposition of Defendant Armen Gasparian and for production of documents.

California 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 Civ. Proc. § 2025.450(a).) Further, where production of documents is sought in connection with the deposition, the motion must set forth specific facts showing good cause justifying the production. (Code Civ. Proc. § 2025.450(b)(1).)

            Here, Plaintiffs served a deposition notice on Defendant Armen Gasparian on August 9, 2023 for a deposition on August 30, 2023. (Bryn Decl. Exh. B.) Defendant did not appear. (Id. ¶ 4.) Plaintiffs’ counsel states that although Defendant promised repeatedly to provide dates when he would be available for deposition in September 2023, no dates were ever provided. (Id. ¶¶ 5-6.) Plaintiffs are therefore entitled to an order compelling Defendant to appear for deposition.

            Plaintiffs also request that the Court compel production of 16 categories of documents identified in the deposition notice. (Bryn Decl. Exh. B.) These categories include, inter alia, documents pertaining to construction at Defendants’ property, agreements between the Defendants concerning that construction, and Defendants’ claim of an easement over Plaintiffs’ property. (Id.) These requests are relevant on their face to the allegations pled in the First Amended Complaint. (See FAC ¶¶ 9-25.) Plaintiffs have therefore demonstrated good cause for production of these documents.

Sanctions

            Plaintiffs also request monetary sanctions against Defendant in the amount of $4,485.

Code of Civil Procedure section 2025.450(g)(1) requires the Court to impose sanctions against any party who unsuccessfully makes or opposes a motion to compel deposition, 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.

            Here, Plaintiffs request sanctions in the amount of $4,485, based on 3.5 hours of attorney time incurred preparing this motion at an hourly rate of $495 per hour, plus 3.5 anticipated hours, plus an additional $960 in costs to cover the fees for the court reporter at the August 30 deposition. (Bryn Decl. ¶ 8.) The Court declines to award anticipated attorney’s fees not actually incurred. Accordingly, Plaintiffs will be awarded reduced sanctions in the amount of $2,692.50, reflecting the fees and costs actually incurred.

CONCLUSION:

            Accordingly, Plaintiffs’ Motion to Compel Deposition is GRANTED.

            Defendant Armen Gasparian is ordered to appear for deposition and produce all documents responsive to the categories identified in the August 9, 2023 deposition notice at a time and place of Plaintiffs’ choosing within 30 days of this order.

            Plaintiffs’ request for sanctions is GRANTED in the amount of $2,692.50. Payment is to be made within 10 days of this order.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  October 30, 2023                                ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.