Judge: William A. Crowfoot, Case: 20STCV11374, Date: 2022-12-16 Tentative Ruling

Case Number: 20STCV11374    Hearing Date: December 16, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

          On March 20, 2020, plaintiffs Maya Ben-Hayun and Ariel Ben-Loulu filed this action against defendants Peterson Brothers Construction, Inc. dba PBC Companies (“PBC”) (erroneously sued as “PBC Leasing, LLC”) and Saul V. Hernandez Cabrera (“Cabrera”) (erroneously sued as “Saul V. Cabrera Hernandez”) (collectively, “Defendants”). On November 12, 2021, Yosef Ben-Loulu filed an action against Defendants which was subsequently consolidated with this action.

          On August 22, 2022, Maya Ben-Hayun, Ariel Ben-Loulu, and Yosef Ben-Loulu (collectively, “Plaintiffs”) filed this motion for an order compelling the deposition of PBC’s person most qualified (“PMQ”) and imposing sanctions against PBC and counsel of record. 

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).)

Plaintiffs state that they have noticed the deposition for PBC’s PMQ four times since January 2022.  PBC objected to the first three deposition notices, and the parties finally agreed to have the deposition proceed on July 21, 2022, but Plaintiff’s counsel had a medical emergency and could not conduct the deposition.  PBC has refused to reschedule the deposition for its PMQ. 

The first deposition notice was served on January 16, 2022, and scheduled the deposition for January 27, 2022.  (Motion, Suarez Decl., Ex. A.) 

The second deposition notice was served on March 1, 2022, and scheduled the deposition for March 17, 2022.  (Id., Ex. B.) 

The third deposition notice was served on March 14, 2022, and scheduled the deposition for April 20, 2022.  (Id., Ex. C.) 

The fourth deposition notice was served on July 11, 2022, and scheduled the deposition for July 21, 2022.  (Id., Ex. D.)  On July 21, 2022, at 9:18 a.m., Plaintiff’s counsel emailed defense counsel and reported that he had a severe eye infection and asked to reschedule the deposition for July 27 or July 29.  (Id., Ex. F.)  Plaintiff’s counsel stated that if PBC would admit to liability, some of the categories of testimony would be eliminated.  At 9:23 a.m., defense counsel replied and said she would “prefer not to move it” and stated that PBC has already agreed that Cabrera was acting in the course and scope of his employment with PBC, which should eliminate questions regarding hiring practices and training.  At 11:01 a.m., defense counsel emailed Plaintiff’s counsel and informed him that she was “waiting to be let into the deposition.”  Plaintiff’s counsel responded at 1:20 p.m. stating that he had a medical emergency and requested additional dates.  At 1:47 p.m., defense counsel replied and said, “My client and I appeared for the deposition today as noticed.  I don’t know what else to tell you.”  On August 5, 2022, Plaintiff’s counsel wrote to defense counsel and requested dates of availability by August 9, 2022 or he would file a motion. 

In opposition, PBC argues that their PMQ should not be compelled to appear because the PMQ was previously made available but the deposition had to be rescheduled twice due to a death in Plaintiff’s counsel’s family and Plaintiff’s counsel’s medical emergency.  PBC contends that after their PMQ specifically took time off work on two occasions to be deposed, and defense counsel also continued a deposition in another case with an earlier trial date, they should not be compelled to sit for a deposition.  This assertion is not supported by any legal authority and it runs counter to the principles of civility and professionalism, especially because family deaths and medical emergencies are not typically events which are within an individual’s control.  That the deposition in question has been continued now several times, at some inconvenience for the deponent, is regrettable, but as regrettable, and concerning to the Court, is the fact that defense counsel has made these unfortunate events, and the last one in particular, the basis for a motion to compel. 

PBC also argues that because it does not dispute liability or the fact that Cabrera was working in the course and scope of his employment, the deposition of PBC’s PMQ is unnecessary because claims of negligent entrustment, negligent training, or negligent retention are no longer at issue.  But there is no evidence of a stipulation.  In fact, PBC admits that “the parties have been unable to agree on the terms of the stipulation”.  (Opp., 4:11-13.)  The proposed stipulation attached to defense counsel’s declaration also states that “Defendants reserve the right to dispute causation.”  (Opp., Ex. C.)  Further, if PBC took issue with the scope of the deposition notice, PBC’s recourse was to serve objections to the fourth amended notice of deposition or file a motion for a protective order.  PBC did neither. 

In light of the foregoing, Plaintiff’s motion is GRANTED.  PBC is ordered to produce a PMQ for deposition within 20 days of the date of this order.  

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).)  Plaintiff’s request for sanctions is GRANTED and imposed against PBC and counsel of record, jointly and severally, in the amount of $474, consisting of 3 hours at Plaintiff’s counsel’s hourly rate of $138 and a $60 filing fee.

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.