Judge: Thomas D. Long, Case: 20STCV10368, Date: 2023-04-04 Tentative Ruling

Case Number: 20STCV10368    Hearing Date: April 4, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 10, 2021, Plaintiff Paradigm Industries (“Paradigm”) filed a fourth amended complaint against Defendants A’s Match Dyeing Co. Inc. (“A’s Match”) and Strada Developments L.P. (“Strada”).

On July 20, 2020, Strada filed a cross-complaint against Young Chul Kim, Paradigm, and A’s Match, and on June 27, 2022, it filed a first amended cross-complaint.

On October 13, 2021, A’s Match and Kim filed a cross-complaint against Paradigm and William Jun.

On December 7, 2022,  Paradigm filed a motion to compel Kim’s deposition individually and as the person most knowledgeable (“PMK”) for A’s Match.

A.        Paradigm’s Motion Does Not Comply With Court Rules.

Under the Court’s First Amended General Order for electronic filing, the table of contents and all attachments, including exhibits, must be bookmarked.  (General Order No. 2019-GEN-014-00, at ¶¶ 6(b)-(d); California Rules of Court, rule 3.1110(f)(4).)  Additionally, each accompanying document must be filed as a separate document.  (General Order No. 2019-GEN-014-00, at ¶ 6(f).)  Paradigm’s motion does not comply with these requirements.  Plaintiff’s single document consists of the motion, counsel’s declaration, and exhibits.  The document also does not contain any bookmarks, making it difficult to navigate the 182 pages of the motion, declaration, exhibits, and exhibits to exhibits.

The motion also exceeds the 15-page limit.  (California Rules of Court, rule 3.113(d).)  Excluding the notice of motion, table of contents, and table of authorities, the motion is 22 pages long.  This is caused by Paradigm unnecessarily reproducing the entire contents of emails (which are not also included as separate exhibits) in the Factual Background section, creating a factual background that is difficult, if not impossible, to understand.  (See Motion at pp. 8-21.)  Instead, counsel should summarize the essential facts and cite—not duplicate—exhibits as needed.

If Paradigm continues to electronically file noncompliant documents, the Court may strike the filings or issue sanctions.

B.        Paradigm’s Objections Are Overruled.

Paradigm’s Objections to the Declaration of James Duff are overruled.  Paradigm objects on the basis that the statements are not true, which is not a proper evidentiary objection.

C.        Kim Must Appear For Deposition.

If a party or an officer, director, managing agent, employee of a party, or person designated as the person most qualified to testify fails to appear for examination or produce documents, the demanding party may move to compel attendance, testimony, and production.  (Code Civ. Proc., § 2025.450, subd. (a).)

On December 22, 2021, Paradigm noticed Kim’s deposition as PMK of A’s Match, for a deposition on January 6, 2022.  (Kamath Decl., Ex. 2.)  On January 4, 2022, A’s Match filed a Notice of Chapter 7 Bankruptcy, which automatically stayed this action.  On March 25, 2022, the Court lifted the bankruptcy stay.  (Kamath Decl., Ex. 5.)

On September 28, 2022, Paradigm noticed Kim’s deposition individually and as PMK of A’s Match, noticing a deposition on October 17, 2022.  (Kamath Decl., Ex. 7.)  On October 11, 2022, Kim objected to the deposition, asserting that he was already deposed once on February 3, 2022 individually and as PMK of A’s Match.  (Kamath Decl., Ex. 7.)  On October 17, 2022, Kim failed to appear for his deposition.  (Kamath Decl. ¶ 5.)

Kim argues that he was already deposed, so Paradigm cannot take a second deposition.  (Opposition at p. 3.)  Kim cites email correspondence in which Paradigm’s counsel stated their availability for Kim’s deposition on February 1 or 3, 2022.  (Duff Decl. ¶ 3 & Ex. B.)  At Kim’s February 3, 2022 deposition, counsel for Strada stated, “And, actually, before we start the deposition, I want to put on the record that I did reach out to counsel for Paradigm to see if she’d be joining the deposition.  She responded with an e-mail that just said, no, so she knows of the deposition and has freely chosen not to participate.”  (Duff Decl., Ex. C.)

The deposition transcript is titled: “REMOTE PROCEEDINGS OF THE DEPOSITION OF YOUNG KIM, VOLUME I, TAKEN ON BEHALF OF STRADA DEVELOPMENTS, L.P., AT 10:09 A.M., THURSDAY, FEBRUARY 3, 2022 . . .”  (Duff Decl., Ex. C.)  Strada’s deposition of Kim does not eliminate Paradigm’s right to separately depose Kim.  “Any party” may take a deposition of a person or party.  (Code Civ. Proc., § 2025.010.)  Paradigm has not yet taken Kim’s deposition.  Accordingly, the motion is granted, and Kim must appear for a deposition by Paradigm.

D.        Paradigm’s Request For Sanctions Is Granted In Part.

If a motion to compel deposition is granted, the Court must impose sanctions unless the deponent acted with substantial justification or when other circumstances make the imposition of the sanction unjust.  (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Paradigm requests sanctions of $6,775.85, consisting of the court reporter fees, filing fees, and attorney fees calculated at counsel’s hourly rate of $250 for 16 hours drafting, 3 hours researching, 2 hours formatting, 3 hours meeting and conferring, 5 hours preparing for the deposition.  (Kamath Decl. ¶ 19.)  The actual attorney fees calculation is higher than the requested total sanction.  Nevertheless, the requested total sanction is still excessive and not reasonable.  Twenty-one hours spent on this motion is grossly excessive for what should be a simple motion to compel.  The Court will not award the court reporter costs for the first noticed deposition in January 2022 that could not go forward due to the bankruptcy stay.  Paradigm does not explain the additional filing fee of $14.20, which does not appear in the Court’s records.

The Court concludes that a reasonable sanction is $2,000.00.

E.        Conclusion

The motion is GRANTED.

Kim is ordered to appear for deposition within 30 days.  Kim is also ordered to pay sanctions of $2,000.00 to Paradigm within 30 days.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 4th day of April 2023