Judge: Yolanda Orozco, Case: 19STCV32242, Date: 2022-10-17 Tentative Ruling

Case Number: 19STCV32242    Hearing Date: October 17, 2022    Dept: 31

MOTION TO COMPEL DEPOSITION OF DEFENDANT IS GRANTED 

Background 

On September 11, 2019, Plaintiff Lydia Lim filed a Complaint against ADP Total Source Inc.; Pro-Com Products, Inc.; and Does 1 to 250. On January 15, 2020, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for 1) Violation of California Family Rights Act; 2) Discrimination (Associational) in Violation of FEHA; 3) Gender Discrimination; 4) Failure to Prevent/Remedy Discrimination; 5) Wrongful Termination in Violation of Public Policy; 6. 6) Breach of Written Contract; 7) Breach of Implied-in-Fact Contract, and 8) Breach of the Covenant of Good Faith and Fair Dealing. 

On May 24, 2024, Defendant/Cross-Complainant Prom-Com Products Inc. filed an Amended Cross-Complaint against Plaintiff/Cross-Defendant and Roes 1 to 10 for 1) Breach of Fiduciary Duty; 2) Professional Negligence; 3) Breach of Contract, and 4) Violation of Penal Code Section 502.

On February 01, 2022, Pro-Com moved to disqualify Plaintiff’s counsel and for a protective order to prevent Plaintiff from using documents that were allegedly wrongfully obtained and retained by her during her work as in-house counsel for Pro-Com. The Court denied both motions. (Min. Ord. 02/28/22.) The Court also denied Pro-Com’s request to file documents under seal. (Id.) 

On September 20, 2022, the Court granted Defendants’ request for a protective order requiring Plaintiff to return all documents she took from Pro-Com, requiring Plaintiff to go through formal discovery statutes to obtain discovery, and that Plaintiff refrain from using any of the documentS she took and retained from Pro-Com in any deposition or other proceeding. (Min. Or. 09/20/22.) 

On August 25, 2022, Plaintiff filed this instant Motion to Compel the Deposition of Defendant Defendant Jianqing “Johnny” Zhu (although Plaintiff also said the motion was to compel Pro-Com’s deposition.) 

On October 03, 2022, Defendant Pro-Com filed opposing papers. 

On October 10, 2022, Plaintiff filed a reply. 

Legal Standard 

Code of Civil Procedure section 2025.450, section (a) provides:¿¿ 

¿ 

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”¿ 

¿(Code Civ. Proc., § 2025.450, subd. (a).)¿¿ ¿ 

A motion under Section 2025.450, subdivision (a), must set forth specific facts showing good cause justifying the production of the requested documents in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(1).) Good cause is construed liberally and has been found where documents are necessary for trial preparation. (See Associated Brewers Dist. Co. v. Superior Court 1967) 65 Cal.2d 583, 587.) The motion must also “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce documents…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)¿ 

Discussion 

Motion to Compel

Plaintiff moves to compel the Deposition of Defendant Jianqing “Johnny” Zhu. 

Plaintiff asserts that after several amended notices were served, Defendant Zhu was finally deposed on October 15, 2021, over Zoom. (Zambrano Decl. ¶ 12.) Due to a dispute over whether the documents presented during the October 15, 2021 Zhu deposition were “stolen property,” the deposition ended abruptly. (Id. ¶ 17, Ex. I.) 

On June 2, 2022, Plaintiff’s counsel reached out to Defense counsel, Garrett Smith, to ask for Mr. Zhu’s availability to finish the deposition that started on October 15, 2021. (Zambrano Decl. ¶ 16.) Defendant argues that Plaintiff’s deposition needed to be conducted first because Defendant Zhu may need to file a protective order. (Id. Ex. K.) On June 17, 2022, Plaintiff served a fifth amended notice of deposition set for July 11, 2022. (Id. ¶ 18, Ex. M.) Without serving any objections, Defendant Zhu and his counsel failed to appear at the deposition. (Id. ¶¶ 19, 20, Ex. N.) 

Defendant asserts that on September 20, 2022, this Court granted a protective order preventng Plaintiff from using the “27 attachments” for depositions. (Furcolo Decl. ¶ 23; Smee Decl. ¶ 2, Ex. A.) Defendant asserts that because it was waiting for this Court’s guidance regarding Zhu’s deposition, waiting until after the hearing on the protective order was appropriate rather than objecting to the deposition. (Smee Decl. ¶ 9, Ex. B, G.)  Defense counsel admits he made no formal objections to the deposition but states that he believed it would be redundant and inefficient to do so. (Id. ¶ 10, Ex. H.) Emails between the parties show that Plaintiff was unwilling to move the deposition date set for July 11, 2021, until Defense counsel provided alternative dates; something that Plaintiff was in her right to request. (See Ex. H.) 

However, Defendant only communicated its position after the September 20, 2022 hearing and did not file objections to the fifth amended deposition notice or request that the deposition take place until after the hearing on the protective order. Moreover, there is no indication Defendant ever communicated its intent to move forward with Zhu’s deposition until after the hearing on the protective order. (Id.) 

Defendants’ February 2022 Protective Order was not granted, and Defendant did not move for a second protective order until July 22, 2022, after failing to appear at the noticed deposition on July 11, 2022. Plaintiff is correct in asserting that the proper course of action would have been for  Defendant to serve a valid objection to the amended deposition notice or move for a protective order before the date of the noticed deposition. (Code Civ. Proc., § 2025.450 subd. (a).) Defendant’s excuse for not moving for a protective order before the noticed deposition date was that it would be “redundant and inefficient.” The excuse is unavailing and fails to explain why Defendant did not move for a protective order before the July 11, 2022 deposition or seek a continuance of the deposition to a date after the hearing on the protective order. 

Defendant now takes the position that the Court should enter a protective order governing the order of the depositions and require that Plaintiff be deposed first before Zhu is deposed. Defendant cites Rosemont v. Superior Court of Los Angeles County (1964), in support of this proposition, but Rosemont actually supports the finding that a Court can stay a hearing on taking a party’s deposition to rule on a motion for a protective order and grant a protective order that governs the sequence of the depositions. (60 Cal.2d 709, 712–713.) However, here Defendant did nothing until after the duly noticed deposition took place with no appearance by Defendant or the deponent. 

Regarding “the timeliness of the motion for a protective order, the promptness of the request turns on the facts.” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 317.) In Nativi, the appellate court that the motion for a protective order was timely as a matter of law despite being made after the order compelling further deposition and production because it was made within a week after learning that “appellants would not agree to a protective order and before the date agreed upon by the parties to the court-ordered deposition and the deponent’s production of documents[.]” (Id.) 

Here, Defendant waited until after the deposition date to file a motion for a protective order. After the protective order has been granted, Defendants now asks the Court to enter another protective order without explaining why the protective order granted on September 20, 2022, is insufficient. The Court finds that the Defendant’s new request for a protective order governing the sequence of depositions is without merit. If Defendant wants Plaintiff to be deposed first, he should have brought a noticed motion before the Court. 

Lastly, the Court is unpersuaded that the defense counsel does not have control over the conduct of Zhu who it now asserts is not an employee although defense counsel previously told the Court and Plaintiff that he represented Zhu. (Zambrano Decl. ¶¶ 4-7, Ex. T.) 

For all the stated reasons, the Court GRANTS Plaintiff’s Motion to Compel Deposition of Defendant Johnny Zhu and DENIES Defendant’s request for sanctions and for a protective order. 

Sanctions   

Code of Civil Procedure section 2025.450 subdivision (g)(1) in pertinent part states that if a motion to compel is granted “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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. 

Defendants assert that sanctions should not be imposed because it acted with substantial justification in waiting for guidance from the Court. The fact that Defendants sat on their rights and only moved for a protective order after the noticed deposition took place, and without serving objections as the Code requires, does not support the finding that Defendants acted with substantial justification or show that imposing sanctions is unjust. 

Plaintiff’s counsel seeks sanctions in the amount of $16,250.00 against Defendant and Defendant’s counsel. Plaintiff’s counsel’s hourly rate is $650.00 per hour, and he asserts spending 25 hours on this matter. (Zambrano Decl. ¶¶ 21, 22.) Plaintiff’s counsel asserts he spent 6.0 hours meeting and conferring on this matter over the past two years, 6.0 hours preparing this instant motion, 4.0 hours preparing for the Zhu October 2021 deposition, 4.0 hours preparing for the July 2022 deposition which did not occur, and anticipates 2.0 hours reading and drafting a reply, and 3.0 hours preparing this instant Motion. (Id.) 

The Court finds the hours billed to be excessive and therefore unreasonable. The Court will allow 10 hours of billed fees at $650.00 per hour for a total of  $6,500.00.  

Plaintiff’s request for sanctions is GRANTED, IN PART and awards $6,500.00 in sanctions against Defendant Zhu and Defense Counsel. 

Conclusion 
Plaintiff’s Motion to Compel the Deposition of Defendant Jianqing “Johnny” Zhu is GRANTED. Zhu must be presented for deposition within 30 days.

Plaintiff’s request for sanctions is GRANTED, IN PART in the amount of $$6,500.00 against Defendant Zhu and Defense counsel. 

The Court DENIES Defendant’s request for sanctions and for a protective order. 

Plaintiff to give notice.