Judge: William A. Crowfoot, Case: 22AHCV00871, Date: 2023-08-03 Tentative Ruling

Case Number: 22AHCV00871    Hearing Date: February 9, 2024    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

          On January 16, 2024, Plaintiff Lyco 1, LLC filed this motion for an order to Truong Ngoc (“Ngoc”) to show cause why Ngoc should not be held in contempt for willfully disobeying a deposition subpoena. The deposition subpoena was issued to Ngoc on August 30, 2023, and personally served on her on September 7, 2023. The deposition was scheduled for September 28, 2023. It is undisputed that Ngoc did not appear for her deposition.

On February 1, 2024, Ngoc filed a “response” to this motion, in which her attorney, Dan Hogue, states that Ngoc’s failure to attend the deposition was due to his understanding that the deposition would not be proceeding.

Mr. Hogue explains that on September 13, 2023, he conferred with Plaintiff’s counsel, Shun C. Chen, in preparation of a joint status conference statement. (Response, Hogue Decl., ¶ 7.) Mr. Hogue states that he had informed Plaintiff’s counsel of a preexisting mediation commitment on September 28, 2023, and that he would be unavailable for Ngoc’s deposition. (Response, Hogue Decl., ¶ 7.) Following this, the parties did not discuss whether the deposition would proceed. (Response, Hogue Decl., ¶ 8.)

On November 21, 2023, Ngoc filed a cross-complaint.

On December 20, 2023, Mr. Chen sent an e-mail to Mr. Hogue requesting to schedule the depositions of Ngoc and defendant/cross-complainant Michael Cheng for January 5 and January 8, 2024. (Response, Hogue Decl., Ex. D.) However, Mr. Hogue soon experienced various medical issues. Following the week of Christmas, Mr. Hogue began experiencing flu-/cold-like symptoms. (Response, Hogue Decl., ¶ 11.) Mr. Hogue consulted with his primary doctor because Mr. Hogue had a history of pneumonia and on January 3, 2024, Mr. Hogue advised Mr. Chen of his condition and inability to accommodate the depositions on January 5 and January 8, 2024. (Response, Hogue Decl., ¶ 14.) Mr. Chen acknowledged Mr. Hogue’s unavailability and wished him a swift recovery. (Response, Hogue Decl., Ex. E.) On January 5, 2024, Mr. Hogue was informed by his primary doctor that his symptoms were consistent with those for respiratory syncytial virus (“RSV”) and instructed to limit his activities. (Response, Hogue Decl., ¶ 15.)

Upon Mr. Hogue’s return to work, Mr. Hogue learned that Michael Cheng had also been experiencing severe health concerns including hospitalization for and recovery from abdominal surgery, with a second surgery scheduled on February 2, 2024, for pancreatic cancer. (Response, Hogue Decl., ¶ 16.)

Mr. Hogue also states that Ngoc is an 82-year-old woman in poor health who has been advised by her cardiologist to avoid unnecessary stress. (Response, Hogue Decl., ¶ 17.) Mr. Hogue requests that any scheduled deposition “show appropriate concern for her age and medical condition, such as limited the number of hours per day she will be required to testify.” (Response, Hogue Decl., ¶ 17.)

On February 5, 2024, Plaintiff filed a reply brief objecting to the untimeliness of Ngoc’s “response” and requesting that the Court “order Ngoc to appear for a deposition on a date certain.” (Reply, pp. 2-3.) Plaintiff states that reasonable accommodations will be provided. (Reply, p. 3.)

Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies. (Code of Civ. Proc., § 2020.220, subd. (c).) A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness. (Code of Civ. Proc., § 2020.240.)

          The Court exercises its discretion to consider Ngoc’s untimely response and, as an initial matter, questions the necessity of Plaintiff’s motion. The parties apparently discussed whether Mr. Hogue’s was available on September 28, 2023, concluded that he was not, and there is no indication of Plaintiff’s intent to proceed with the deposition after this discussion. Furthermore, in early January, the parties were already making efforts to schedule Ngoc and Michael Cheng’s depositions.

Therefore, instead of issuing an OSC re: contempt, the Court orders Ngoc to comply with the deposition subpoena and appear for her deposition within the next 30 days. The Court expects the parties to meet and confer regarding a future deposition date for Ngoc and any reasonable accommodations that may be required. If the parties fail to agree on those accommodations, Ngoc may file a motion for a protective order.

Dated this 9th day of February, 2024

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.