Judge Theresa M. Traber, Case 20STCV15512 2022-08-01 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV15512, Date: 2022-08-01 Tentative Ruling

Case Number: 20STCV15512 Hearing Date: August 1, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 1, 2022 TRIAL DATE: January 9, 2023

CASE: Rosalinda Gonzales v. Mary A. Rossilli, individually and as Trustee of the Rossilli Family Trust

CASE NO.: 20STCV15512

MOTION TO COMPEL DEPOSITION OF PLAINTIFF ROSALINDA GONZALES AND FOR SANCTIONS IN THE AMOUNT OF $2,460

MOVING PARTY: Defendant Mary A. Rossilli, individually and as Trustee of the Rossilli Family Trust

RESPONDING PARTY(S): Plaintiff Rosalinda Gonzales

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a landlord-tenant dispute for habitability defects filed on April 22, 2020. Plaintiff alleges that, when she was a tenant at Defendant’s converted studio apartment, she discovered mold in the apartment and suffered injuries and damages as a result.

Defendant moves to compel the deposition of Plaintiff and for sanctions in the amount of $2,460.

TENTATIVE RULING:

Defendant’s Motion to Compel Deposition is DENIED AS MOOT.

Defendant’s Request for Sanctions is DENIED.

DISCUSSION:

Motion to Compel Deposition

Defendant moves to compel the deposition of Plaintiff.

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 Kitty Xie states that the parties were engaged in extensive efforts to schedule and take Plaintiff’s deposition, including extensive email correspondence leading up to the noticed deposition on February 17, 2022 for which Plaintiff failed to appear. (Declaration of Kitty Xie ISO Mot. ¶¶ 5-14.) The declaration also includes copies of the email correspondence between the parties attempting, unsuccessfully, to resolve this dispute. (Id. Exhs. A-G.) Defendant has offered sufficient evidence to satisfy the statutory meet and confer requirement for this motion.

Analysis

Defendant moves to compel the deposition of Plaintiff.

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.”

In opposition, Plaintiff states that Plaintiff appeared for her deposition on June 14, 2022. (Declaration of Suzanne E. Rand-Lewis ISO Opp. ¶ 4.) Defendant concedes that Plaintiff appeared for her deposition on June 14 in the reply brief, but argues that this motion is still proper because Plaintiff’s counsel terminated the deposition after only half an hour. (Declaration of Kitty Xie ISO Reply ¶ 4.) Defense counsel makes several allegations of unprofessional, belligerent, and obstructive conduct by Plaintiff’s counsel. (See Xie Reply Decl. ¶ 5, Exh. 1.) The Court does not reach the merits of Defense counsel’s contentions. Plaintiff is correct that section 2025.450 permits a motion to compel a deposition only when a party has failed to appear for a deposition. Here, it is undisputed that Plaintiff appeared for a deposition, albeit an extremely short deposition. If Defendant wishes to continue Plaintiff’s deposition for the additional time allotted to Defendant per code, Defendant may notice the continued deposition of Plaintiff as required by statute and, if necessary, move to compel a continued deposition on the new date. Defendant is similarly at liberty to move to compel answers or further testimony, or to seek any other relief as permitted by law.

Conclusion:

Defendant’s Motion to Compel Deposition is DENIED AS MOOT.

Request for Sanctions

Defendant requests monetary sanctions against Plaintiff in the amount of $2,460 for reasonable attorney’s fees and costs.

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, Defendant is not the prevailing party on this motion, and there is no showing that Plaintiff’s initial failure to appear for deposition was without substantial justification. Accordingly, the Court denies the sanctions request.

CONCLUSION:

Accordingly, Defendant’s Motion to Compel Deposition is DENIED AS MOOT.

Defendant’s Request for Sanctions is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: August 1, 2022 ___________________________________

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.