Judge: William A. Crowfoot, Case: 22STCV29020, Date: 2023-01-06 Tentative Ruling

Case Number: 22STCV29020    Hearing Date: January 6, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Background

On September 6, 2022, Plaintiff James Kim filed this action against Defendant California Commerce Club, Inc. alleging seven causes of action for battery; assault; negligence, negligent hiring, supervision, and retention; agency; false imprisonment; and intentional infliction of emotional distress.

On December 13, 2022, Defendant filed a motion to compel the deposition of Plaintiff James Kim. On December 22, 2022, Plaintiff filed an opposition. On December 29, 2022, Defendant filed a reply. 

Legal Standard

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).)

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled.  (Code Civ. Proc., § 2025.410, subd. (a).)  In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice.  (Code Civ. Proc., § 2025.410, subd. (c).)

“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).)

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).)

Discussion

Plaintiff’s deposition was set for October 12, 2022. (Ryan Decl. ¶ 5, Ex. 1.) On October 4, Defendant requested the start time of the deposition to be changed. (Ryan Decl. ¶ 6, Ex. 3.) When Plaintiff responded that the conflict would not work for him, Defense counsel provided seven alternative dates in late October and early November. (Ryan Decl. ¶ 8, Ex. 5.) Plaintiff failed to respond for four days. (Ryan Decl. ¶ 10.) After Plaintiff propounded written discovery on Defendant, (Ryan Decl. Ex. 7.), Plaintiff stated that “You guys can take his depo first before we take any but we’d like to exchange discovery first.” (Ryan Decl. ¶ 12, Ex. 9.) Defendant responded with a deposition notice for October 25, 2022. (Ryan Decl. ¶ 13, Ex. 11.)

After meeting and conferring by telephone, the parties agreed to a deposition date of November 17, 2022. (Ryan Decl. ¶ 14., Ex. 13.) On November 15, 2022, the parties met and conferred by telephone. Defendant followed up the call with an email stating:

You informed me that you do not intend to present your client for deposition on Thursday until you receive video of the incident. You stated that you have case law which states that a Plaintiff does not have to appear for deposition until a video of an incident is produced. I am not aware of any case law and look forward to receiving it. All statutory and case law I am aware of states that a party is not permitted to refuse to appear at deposition until it is satisfied it has received certain discovery from another party. I look forward to receiving your case law. (Ryan Decl. ¶ 15, Ex. 14).

          Plaintiff served an objection to the Notice of Deposition of Plaintiff on November 15, 2022. (Ryan Decl. Ex. 15.) Defendant states that Plaintiff continues to refuse to appear for deposition. (Ryan Decl. ¶ 16.)

          In opposition, Plaintiff argues that Defendant set the original deposition of Plaintiff without first engaging in a meet and confer regarding appropriate dates and times, pursuant to Los Angeles Local Rule 3.26, Appendix 3A(e). (Edwards Decl. ¶ 4.) Because the parties eventually communicated and met and conferred to reschedule a date, this argument is moot.

Additionally, Plaintiff states that Plaintiff’s counsel had informed defense counsel during the October 12, 2022 phone call that it would be unfair to Plaintiff if Defendant were to conduct the deposition when Defendant had the security videos of the assault and Plaintiff was not able to obtain the videos. (Edwards Decl. ¶ 6.) Plaintiff believed that this would allow defense counsel to use this video to elicit testimony that would attack Plaintiff’s credibility and that Plaintiff should have a chance to refresh his recollection of the incident. (Edwards Decl. ¶ 6.) Plaintiff’s counsel states that the parties had come to an agreement that Defense counsel would produce the security video prior to the deposition, and that Plaintiff detrimentally relied on these representations. (Edwards Decl. ¶ 7-8.) Plaintiff states that Defendant objected to Plaintiff’s discovery requests that requested the security video. (Edwards Decl. ¶ 9, 10, Ex. B, requests 13, 15, 18.)

          Plaintiff cites to various cases to argue that it would provide Defendant an unfair advantage if Defendant were permitted to depose Plaintiff before Plaintiff was able to view the security video. However, none of these cases directly hold that a motion to compel appearance at a deposition should be denied if one does not produce certain discovery prior to a deposition. In both Poeschl v. Superior Court (1964) 229 Cal.App.2d 383 and Dowell v. Superior Court (1956) 47 Cal.2d 483, the trial court had denied a motion to compel production of a tape recording (Poeschl) and an accident report (Dowell), and the appeal court found that there was an abuse of discretion by the trial court. This case is not analogous because Plaintiff has not filed a motion to compel production of the security video. 

Likewise, in Rosemont v. Superior Court (1964) 60 Cal.2d 709, the defendants had moved for an order requiring plaintiff to produce recordings of a conversation he had made with defendants. In the event that their motion for production was denied, defendants moved in the alternative for a protective order to stay the taking of the deposition pending the application for a writ of mandate to require granting of their motion to produce. (Rosemont, supra, 60 Cal.2d at 711.)  The trial court concluded that before plaintiff could take the depositions of the parties, defendants were entitled to inspect and transcribe the recordings. (Id. at 712.) The court held that where a plaintiff sought to be able to refresh his recollection from recordings of conversation before giving a deposition, an order allowing defendants to inspect the recordings before giving the depositions was discretionary and the court could alter the timing of discovery in its broad discretionary powers. (Rosemont, supra, 60 Cal.2d at 714.)

Rosemont does not support Plaintiff’s argument that the motion to compel deposition should be denied. Plaintiff did not move for a protective order staying the deposition or move to compel the security video. Although Plaintiff filed an objection to the deposition on November 15, 2022, this objection was not before the three calendar days required by Code Civ. Proc., § 2025.410, subd. (a). 

Here, Plaintiff had several alternative options to appropriately object to the deposition. Plaintiff could have noticed and filed a motion to compel further as to the security video, or Plaintiff could have moved for a protective order prior to the deposition. Plaintiff is not free to wait until two days before the scheduled deposition date to file an objection and force Defendants to file a motion to compel deposition to argue that Defendants have not complied with Plaintiff’s discovery request.

Thus, the motion to compel deposition of Plaintiff James Kim is granted.

          Plaintiff argues that he acted with substantial justification for refusing to appear for his deposition. The Court does not agree. As stated above, although Plaintiff states that he did not appear for the deposition because Defendant did not produce the security video, Plaintiff was not free to ignore Defendant’s deposition notice. Thus, the Court grants Defendant’s request for monetary sanctions in the amount of $1,024 (3.6 hours at $260.00 per hour).

          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.