Judge Virginia Keeny, Case 19VECV01307 2022-12-12 Tentative Ruling

Judge: Virginia Keeny, Case: 19VECV01307, Date: 2022-12-12 Tentative Ruling

Case Number: 19VECV01307 Hearing Date: December 12, 2022 Dept: W

harandi v. house, et al.

defendant jessica thomas’ MOTION TO COMPEL ATTENDANCE OF PLAINTIFF ELIZABETH HARANDI FOR DEPOSITION, FOR PRODUCTION OF DOCUMENTS, AND FOR MONETARY SANCTIONS

Date of Hearing: December 12, 2022 Trial Date: February 27, 2023

Department: W Case No.: 19VECV01307

Moving Party: Defendant Jessica Thomas

Responding Party: Plaintiff Elizabeth Harandi

BACKGROUND

This is a legal malpractice action. Plaintiff hired Defendants Linda House, Galindo & Fox, and Marcia Galindo to represent her in the dissolution of her marriage.

Plaintiff alleges over the course of the representation, Defendant House committed a multitude of negligent acts including: failing to file a declaration which caused Plaintiff’s motion to be ineligible for attorney fees, failing to respond in writing how to report Plaintiff’s income to the court which caused the court to make an inaccurate and detrimental decision concerning Plaintiff’s finances, and failing to inform Plaintiff with the required promptness of developments in her case, amongst several other alleged negligent acts.

On September 12, 2019, Plaintiff filed a complaint alleging: 1) Professional Malpractice; 2) Breach of Fiduciary Duty; and 3) Breach of Contract.

After sustaining the demurrer to the third cause of action, Plaintiff filed a First Amended Complaint on March 10, 2020. On September 23, 2020, Defendant House filed a demurrer to the third cause of action and moved to strike Plaintiff’s additional causes of action. After the hearing, the court sustained, without leave to amend, Defendant House’s demurrer to the third cause of action and allowed to Defendant House to file a demurrer to the first and second causes of action of the FAC.

Plaintiff filed a Second Amended Complaint on January 25, 2021. On March 9, 2021, Plaintiff dismissed Defendant House with prejudice. After obtaining leave of court, Plaintiff filed a Third Amended Complaint naming Jessica Thomas as Successor-In-Interest to Marcia Galindo and adding a declaratory relief cause of action.

[Tentative] Ruling

Defendant Jessica Thomas’ Motion to Compel Attendance of Plaintiff Elizabeth Harandi for Deposition, for Production of Documents, and for Monetary Sanctions is GRANTED.

request for judicial notice

Defendant Jessica Thomas requests this court take judicial notice of a conformed filing made in Los Angeles County Superior Court, Case No. 20STCV20818, indicating notice of continued hearing dates as filed November 3, 2022 at 5:03pm. (RJN, Exh. 1.)

The court grants Defendant’s request for judicial notice. (Evid. Code §452(d).)

discussion

Defendant Jessica Thomas moves this court for an order (i) compelling the Plaintiff Elizabeth Harandi to appear and testify at her deposition; (ii) compelling Ms. Harandi to produce at the same deposition documents requested of her; and (iii) imposing monetary sanctions against Ms. Harandi and her attorney-of-record, Michael Shapiro, jointly and severally in an amount equal to $3,054.28. If granted, Defendant Thomas further seeks an order continuing trial in this matter and reset the summary judgment-hearing currently calendared for February 16, 2023.

“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 produce for inspection any document, … 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 … described in the deposition notice.” (CCP §2025.450(a).) A motion brought to compel a deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (CCP§2025.450(b)(2).)

“If a deponent fails to answer any question or to produce any document, electronically stored information,¿or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP §2025.480(a); see Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015 n. 3.)

Defendant Thomas argues Harandi failed to appear at her deposition and failed to produce the requested categories set forth in her deposition notice after six months of seeking to depose Plaintiff. Defendant contends they first sought deposition dates for Plaintiff’s deposition on May 3, 2022. (Dolce Decl. ¶6a.) Upon Plaintiff retaining counsel, the parties confirmed Plaintiff’s deposition date for June 30, 2022. (Dolce Decl. ¶6c.) On June 21, 2022, Plaintiff notified Defendant she contracted COVID-19 and the deposition was taken off calendar. (Dolce Decl. ¶6d-6e.) A month later, Defendant followed up with Plaintiff regarding her deposition. (Dolce Decl. ¶6f.) After several communications, the parties agreed to a deposition date of November 7, 2022 and a third deposition notice, with a demand for production, was issued. (Dolce Decl. ¶6g-6l.) On November 3, 2022, Plaintiff sought the possibility of a settlement but Defense counsel informed Plaintiff the deposition would go forward. (Dolce Decl. ¶6m.) The following night, Plaintiff’s counsel notified defense counsel he had a conflict for the November 7, 2022 deposition. (Dolce Decl. ¶6n.) Defense counsel informed Plaintiff moving the date would not work as the court reporter was already ordered and the MSJ hearing was already reserved. (Dolce Decl. ¶6o-6p.) Defense counsel also noted the belated request is prejudicial to Defendant’s interests and Plaintiff’s counsel attendance at his own hearing was not required as he has his separate counsel for that matter. (Dolce Decl. ¶6p.) Plaintiff did not attend the hearing November 7, 2022. (Dolce Decl. ¶6q.) Defendant argues the basis of Plaintiff’s non-appearance is exclusively tied to her attorney’s position that his desire to attend an MSJ/FSC scheduled in a case he is a party and not an attorney – supersedes all other dates and obligations that may be imposed upon him or his clients.

Plaintiff’s opposition consists of two declarations – one by Plaintiff and the other by Plaintiff’s counsel. Counsel attests he could not attend the set deposition date as the trial court in an unrelated matter vacated a hearing date for counsel’s motion for summary judgment and final status conference and re-set it for the very morning the deposition was set to commence. Plaintiff attests at the advice of counsel, she did not attend her deposition.

The court finds Defendant is entitled to an Order compelling Plaintiff’s attendance at deposition and production of documents pursuant to Code of Civil Procedure section 2025.450(a). Defendant has demonstrated that Plaintiff has been properly served with three deposition notices. Although the trial court in Plaintiff’s counsel’s separate case moved the hearing on the motion for summary judgment and final status conference to the same day as the deposition, the matters were set for 8:30am. Plaintiff’s deposition was set for 10:00am. The court also notes counsel’s attendance was not mandatory at the hearing on the motion for summary judgment or final status conference.

Accordingly, Defendant’s motion to compel is GRANTED.

Sanctions

Defendant seeks $3,054.28 in monetary sanctions against Plaintiff and her counsel of record for 5.10 hours researching and drafting the required papers, 1.50 hours reviewing Harandi’s opposition and preparing a reply, and .70 hours arguing the motion as well as $81.78 in filing fees and $600 for Plaintiff’s non-appearance.

If a motion under Code of Civil Procedure section 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 the 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.

The court finds sanctions appropriate in this case, but in a lesser amount. There was no justification for counsel’s refusal to appear at the deposition despite the scheduling conflict, which could have been avoided by starting the deposition later. The court finds if appropriate to order sanctions against counsel for plaintiff in the amount of $600 for preparation of the motion, plus filing fees of $81.78 and the non-appearance fee of $600. Total sanctions of $1281.78 payable within 30 days to defendant’s counsel.

Given this order, the court also will advance and vacate the trial date and continue the motion for summary judgment/adjudication to a date to be determined at the hearing on this matter.