Judge: Virginia Keeny, Case: 23STCV12551, Date: 2025-03-18 Tentative Ruling

Case Number: 23STCV12551    Hearing Date: March 18, 2025    Dept: 45

Hyung Bai Lee, et al. v. sbjs properties, inc., et al.

MOTION TO compel the person most knowledgeable for defendant sbjs properties, inc. to appear for deposition and produce documents; FOR AN AWARD OF SANCTIONS AGAINST DEFENDANT AND DEFENDANT’S COUNSEL

Date of Hearing: 3/18/25                                            Trial Date: 8/18/25

Department: 45                                                          Case No.: 23STCV12551

Moving Party:             Plaintiff Hyung Bai Lee

Responding Party:       Defendant SBJS Properties, Inc.

BACKGROUND

This is a labor wage and hour violation case. Plaintiff Hyung Bai Lee (“Plaintiff”) alleges that on or around January 1, 2007, he was hired to work for SBJS Properties, Inc. (“Defendant”) and Does 1 through 50, in California, and terminated on or about September 10, 2022. During his employment, Defendant allegedly failed to (among other things) pay Plaintiff all of his wages, including overtime pay. 

On June 1, 2023, Plaintiff filed the operative Complaint against Defendant and Does 1 through 50, asserting causes of action for (1) failure to pay overtime wages, (2) failure to provide meal periods, (3) failure to authorize and permit rest periods, (4) failure to timely pay final wages at termination, (5) failure to provide accurate itemized wage statements, and (6) unfair business practices.

On August 14, 2023, Defendant filed its Answer. 

On January 16, 2025, Plaintiff filed the instant motion to compel the person most knowledgeable (“PMK”) for Defendant to appear for deposition.

On March 5, 2025, Defendant filed its opposition.

On March 7, 2025, Plaintiff filed his reply.

[Tentative] Ruling

The Motion to Compel the Person Most Knowledgeable for Defendant is GRANTED IN PART and DENIED IN PART as follows.

The request for an order compelling Defendant SBJS Properties, Inc. to produce its person Most Knowledgeable is GRANTED. The Court orders the defendant to produce the witness no later than Friday, March 28, 2025. The deposition shall take place remotely at 10:00 A.M. Plaintiff is ordered to provide Defendant and its counsel with the date and link for the deposition no later than Wednesday, March 19, 2025. The parties can meet and confer and agree on a different date, time, and place for the deposition. However, that agreement shall be in writing and signed by both parties.

The request for sanctions is GRANTED. Defendant SBJS Properties, Inc. is ordered to pay Plaintiff Hyung Bai Lee sanctions of $1,710.

The request for an order compelling Defendant SBJS Properties, Inc.’s Person Most Knowledgeable to produce the category of documents in the Fourth Amended Notice of Deposition is GRANTED.

LEGAL STANDARD

“If, after service of a deposition notice, a party to the action . . . , 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 . . . 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.” (Code Civ. Proc., § 2025.450, subd. (a).)

“A motion [to compel a deposition] 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.”

(Code Civ. Proc., § 2025.450, subd. (b).)

“If a motion under subdivision (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.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

DISCUSSION

Plaintiff moves to compel Defendant’s PMK to attend and produce documents at a deposition. Plaintiff also moves for monetary sanctions of $6,110 against Defendant and its counsel of record.

A.     Meet and Confer

Defendant argues that Plaintiff did not meet and confer before filing the instant motion.

Plaintiff does not deny that fact but suggests that any attempt to meet and confer would have been futile given that the parties have met and conferred on multiple occasions regarding scheduling the deposition as Defendant admits in its opposition.

It appears from the parties’ papers that the parties are unwilling to resolve the issues raised in the motion. Therefore, continuing the hearing and requiring the parties to meet and confer will only prevent this case from moving forward.

Accordingly, the Court will consider the motion on its merits.

B.      Request to Compel Deposition of Defendant’s Person Most Knowledgeable

Plaintiff’s counsel attests to the following facts in support of the motion.

Plaintiff has been trying to obtain the PMK deposition for a year. (Motion, Declaration of Elizabeth Votra (“Votra Decl.”), ¶ 3.) Counsel’s office served deposition notices on Defendant on January 10, 2024, February 29, 2024 (the First Amended Notice of Deposition Notice), April 15, 2024 (the Second Amended Deposition Notice), and May 31, 2024 (the Third Amended Notice of Deposition). (Votra Decl., ¶¶ 3, 5, 7, 9.) Defendant never served objections to those deposition notices. (Votra Decl., ¶¶ 4, 6, 8, 10.) In addition, two of those deposition notices were based on dates that Defendant suggested the deposition to take place (i.e., the First Amended Notice of Deposition), or met and conferred with Plaintiff’s counsel and agreed to provide the PMK for that date (i.e., the Second Amended Notice of Deposition). (Votra Decl., ¶¶ 4-7.) The Third Amended Notice of Deposition called for the PMK deposition to take place remotely on October 3, 2024. (Votra Decl., ¶ 9.) Instead of serving an objection to that deposition notice, on September 24, 2024, defense counsel claimed that his “office move ran into complications” and unilaterally requested rescheduling the PMK deposition for the fourth time. (Votra Decl., ¶ 10.)

On September 30, 2024, Plaintiff served the Fourth Amended Deposition Notice on Defendant, scheduling the deposition to take place, remotely, on January 15, 2025. (Votra Decl., ¶ 11; Exhibit I – a copy of the Fourth Deposition Notice.)

On October 1, 2024, defense counsel emailed Plaintiff’s counsel stating that he would be unavailable for that deposition because he would be in Korea, and suggested postponing the deposition to February 14, 2025. (Votra Decl., ¶ 12; Exhibit J – a copy of the email, p. 1, at the bottom of the page.)

In response, on December 2 and December 11, 2024, Plaintiff’s counsel emailed defense counsel asking for his availability on any of the following dates: January 29, 30, or 31; and February 3, 4, 5, 20, or 21, 2025, to reschedule the PMK deposition (presumably because February 14, 2025, did not work for Plaintiff’s side). (Votra Decl., ¶ 12; Exhibits K and L.) Plaintiff’s counsel also warned that the PMK’s deposition was still scheduled to take place on January 15, 2025. (Votra Decl., ¶ 13.)

However, defense counsel did not respond to Plaintiff’s counsel’s December 2024 emails, and, therefore, Plaintiff proceeded with hiring a court reporter for the January 15, 2025 deposition. (Votra Decl., ¶¶ 13, 14.)

Subsequently, defense counsel replied to Plaintiff’s counsel, claiming that he had suggested a date in the first two weeks of April 2025. (Votra Decl., ¶ 15.) The Court notes that in his email to Plaintiff’s counsel, defense counsel also informed Plaintiff’s counsel that his sister (the PMK) had been impacted by the Eaton Fire in Los Angeles and, therefore, would be unavailable for the deposition on January 15, 2025. (Votra Decl., ¶ 15; Exhibit M, p. 1.)

Defendant and its counsel did not appear for the January 15, 2025 deposition, causing Plaintiff to obtain a certificate of nonappearance. (Votra Decl., ¶¶ 16, 17.)

For those reasons, Plaintiff moves for an order compelling Defendant to produce its PMK for a deposition within 10 days of this ruling.

In opposition, defense counsel testifies that there has been no refusal by Defendant to produce the PMK, and that he had informed Plaintiff’s counsel of his and the PMK’s unavailability on January 15, 2025. (Votra Decl., ¶¶ 4, 5.)

After reviewing the parties’ papers, the Court finds it proper to grant Plaintiff’s request to compel the PMK deposition given Defendant’s tendency of claiming that it is unavailable.

Therefore, the request to compel Defendant to produce its PMK for deposition within 10 days of this ruling is GRANTED.

C.      Request for Production of Documents at Deposition and Separate Statement Requirements

Plaintiff also moves for an order compelling the PMK to produce the documents requested in Plaintiff’s Fourth Amended Notice of Deposition. (See Votra Decl., Exhibit I, Attachment B [requiring the PMK to produce 82 categories of documents].)  Defendant has never served objections to these requests.  Accordingly, any objections are waived.  Defendant is ordered to produce all responsive documents at the deposition. 

Request for Sanctions

“If a motion [to compel a deposition] 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.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Here, the Court finds it proper to impose sanctions given Defendant’s failure to serve an object to the Fourth Amended Deposition Notice.

Plaintiff seeks sanctions of $6,110, consisting of the following. 6 hours Plaintiff’s counsel spent on the moving papers, 4 hours Plaintiff’s counsel spent reviewing the opposition papers and preparing a reply, and 1 hour counsel anticipates spending attending the hearing on this motion, a total of 11 hours at counsel’s billing rate of $550.00 per hour (equals $6,050.00), plus the $60.00 filing fee. (Votra Decl., ¶ 19.)

The Court finds the requested sanctions excessive since it is unlikely that counsel spent 11 hours on the motion, and Plaintiff failed to meet and confer with Defendant regarding the motion.

Therefore, the Court will impose sanctions of $1,710 against Defendant. That amount consists of 3 hours of counsel’s time at counsel’s billing rate of $550 per hour (equals $1,650), plus the $60 filing fee.

Accordingly, the request for sanctions is GRANTED, but in the reduced amount of $1,710.

Defendant and defense counsel are warned that failure to produce the PMK for the court-ordered deposition without a valid excuse will result in additional sanctions. (See Code Civ. Proc., §§ 2025.450, subd. (h) [“If [a] party or party-affiliated deponent … fails to obey an order compelling [deposition] attendance, testimony, and production [of documents], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated”]; 2025.450, subd. (h) [“In lieu of, or in addition to, [the] sanction [above], the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent’s testimony would be taken pursuant to that order”].)

CONCLUSION

The Motion to Compel the Person Most Knowledgeable for Defendant is GRANTED IN PART and DENIED IN PART as follows.

The request for an order compelling Defendant SBJS Properties, Inc. to produce its person Most Knowledgeable is GRANTED. The Court orders the defendant to produce the witness no later than Friday, March 28, 2025. The deposition shall take place remotely at 10:00 A.M. Plaintiff is ordered to provide Defendant and its counsel with the date and link for the deposition no later than Wednesday, March 19, 2025. The parties can meet and confer and agree on a different date, time, and place for the deposition. However, that agreement shall be in writing and signed by both parties.

The request for sanctions is GRANTED. Defendant SBJS Properties, Inc. is ordered to pay Plaintiff Hyung Bai Lee sanctions of $1,710.

The request for an order compelling Defendant SBJS Properties, Inc.’s Person Most Knowledgeable to produce the category of documents in the Fourth Amended Notice of Deposition is GRANTED.

Plaintiff to give notice.