Judge: William A. Crowfoot, Case: 19STCV30244, Date: 2022-09-22 Tentative Ruling

Case Number: 19STCV30244    Hearing Date: September 22, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 23, 2019, plaintiff Simpad Zabounian (“Plaintiff”) filed this action against defendants BNG Security, Brian Bejarano, Viva Hollywood Lounge, The Study Hollywood fka Viva Hollywood Lounge, Project Club LA fka Viva Hollywood Lounge, and DWG International, Inc.  Plaintiff alleges he was severely beaten by Bejarano on May 5, 2018, at approximately 12:30 a.m. 

On February 13, 2020, Plaintiff amended the Complaint to add The Jet Group, LLC dba Viva Hollywood Lounge dba The Study Hollywood dba Project Club LA as Doe 1.

On June 28, 2022, Viva Hollywood Lounge and The Jet Group, Inc. (collectively, “Defendants”) filed this motion to compel Plaintiff’s deposition on July 10, 2022.  Defendants also requested sanctions including attorneys’ fees and court reporter fees for Plaintiff’s failure to appear at a previously noticed deposition. 

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.  (Code Civ. Proc., § 2025.010.)  A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.  (Code Civ. Proc., § 2025.280, subd. (a).)  “If, after service of a deposition notice, a party . . . without having served a valid objection . . . 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 notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450, subd. (a).)  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.  (Id., subd. (b)(2).) 

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Code Civ. Proc., § 2025.450, subd. (g)(1).)  On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent.  (Code Civ. Proc., § 2025.450, subd. (g)(2).)

On September 9, 2022, Plaintiff filed an opposition brief and argued that Defendants’ motion was moot because Plaintiff’s deposition was taken and completed on August 24, 2022.  Plaintiff also argues that Defendants and counsel did not meet and confer prior to filing the motion and that Plaintiff’s failure to appear on the unilaterally noticed date was justified and necessary. 

Defendants’ meet and confer declaration does not show that defense counsel met and conferred with Plaintiff’s counsel prior to filing this motion.  Furthermore, Plaintiff’s failure to attend the deposition unilaterally noticed by Defendants was due to Plaintiff’s counsel’s unavailability.  Plaintiff’s counsel declares that he was at the federal building conducting personal/family business for a scheduled and prepaid vacation.  (Mitilian Decl., ¶ 3.) 

In light of the foregoing, Defendants’ motion to compel is DENIED and Defendants’ request for sanctions is DENIED. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.