Case Number: BC580540 Hearing Date: June 16, 2016 Dept: 40

MOTION TO COMPEL DEPOSITION OF PLAINTIFF

MOVING PARTIES: Defendants/Cross-Complainants Jai June Rhee, Eun Jung Kim, Myong Ju Kim

RESPONDING PARTY: Plaintiff/Cross-Defendant Bennett Koo

MOTION TO COMPEL DEPOSITIONS OF DEFENDANTS

MOVING PARTY: Plaintiff/Cross-Defendant Bennett Koo

RESPONDING PARTIES: Defendants/Cross-Complainants Jai June Rhee, Eun Jung
Kim, Myong Ju Kim

These motions to compel depositions are essentially a fight over which side of the litigation has to be deposed first.

However, Plaintiff’s objections to the deposition notice were code compliant, while Defendants’ were not. Therefore, Plaintiff’s motion IS GRANTED and Defendants’ motion is DENIED.

SUMMARY OF ISSUES

On June 4, 2015, Defendants served Plaintiff’s counsel with a Notice of Deposition set for June 24, 2015. (Cianci Decl. 1, Chang Decl. A) Plaintiff objected to the notice on June 19, 2015 on the grounds that Plaintiff now resides in Singapore, and thus the location, in the United States, was improper, as it was over 150 miles from his residence. (Cianci Decl. 2, Chang Decl. B) Plaintiff’s counsel was amenable to deposition in Singapore or by videoconference. The parties met and conferred on June 29, 2015 by telephone and the question of whether Plaintiff would be in the United States was discussed. On July 10, 2015, Plaintiff’s counsel informed Defendants’ counsel that Plaintiff would not be travelling to the United States for the foreseeable future and asked to schedule dates for deposition in Singapore or by videoconference. (Cianci Decl. Ex. 5, Chang Decl. D.A, F.)

On September 25, 2015, Defendants’ counsel sent a letter that demanded that the deposition take place in the United States. (See Chang Decl. Ex. C, a meet and confer letter discussing other discovery issues, but not deposition.) On October 2, 2015, Plaintiff’s counsel responded stating that Plaintiff is a permanent resident of Singapore and cannot be deposed physically in California. (Chang Decl. Ex. D.) On December 2, 2015, Judge Rosenblatt ordered that the parties meet and confer on when Plaintiff’s deposition would take place in Singapore or by videoconference. (Cianci Decl. Ex. 5, Chang Decl. ¶9, Ex. F)

On December 21, 2015, Plaintiff noticed the depositions of all defendants for February 29-March 2, 2016. (Cianci Decl. Ex. 3, Chang Decl. Ex. E.) Defendants objected on to all depositions on February 22, 2016 on the grounds that they were entitled to take Plaintiff’s deposition prior to the deposition of Defendants. (Cianci Decl. Ex. 4.)

The parties met and conferred by email from February 22, 2016 to March 18, 2016 to determine dates for the depositions of all parties, but were unable to agree on dates or whether Plaintiff or Defendants would be deposed first. (Cianci Decl. Ex. 5, Chang Decl. F.) In the discussions, the parties had agreed to depose Defendants on April 14 and 15, 2016, pursuant to a representation of availability by Defendants’ counsel and an agreement to depose Plaintiff on April 18, 2016. (Id.) Defendants’ counsel then demanded that the deposition of Plaintiff take place prior to the deposition of Defendants and formally objected to the re-noticed depositions. (Decl. Cianci Ex. 5, Decl Chang Exs. F, G, H.)

During this series of emails, Plaintiff’s counsel continued to represent that Plaintiff was a resident of Singapore and provided a declaration stating such to Defendants’ counsel after the entry of a stipulated protective order. (Order entered with this Court on March 2, 2016, Chang Decl. ¶ 20.) However, in Plaintiff’s Verified First Amended Complaint, Plaintiff states that he “is and, at all times relevant herein, was an individual residing in Los Angeles, California.” (Verified FAC ¶1.)

Defendants filed their motion to compel on April 11, 2016. Plaintiff filed his own motion to compel on April 12, 2016 with an ex parte application to shorten time, which was denied. Plaintiff filed his opposition to Defendants’ motion on April 20, 2016. Defendants filed their opposition to Plaintiff’s motion on May 9, 2016. Replies were due May 16, 2016.

ANALYSIS

If a party does not appear for deposition without having served a valid objection, the noticing party may move to compel appearance. (Code Civ. Proc. (CCP) §2025.450.) A valid objection must specify in writing the defect in the deposition notice at least three calendar days prior to the date of deposition. (CCP §2025.410. See also §2025.210 et. seq.) A deposition must take place either within 75 miles of the deponent’s residence or within the county where the action is pending and within 150 miles of the deponent’s residence. (CCP §2025.250.)

The methods of discovery may be used in any sequence, and one party’s discovery shall not operate to delay the discovery of another party, “[e]xcept as otherwise provided by . . . a local court rule.” (CCP §2019.020.) “When a deposition is noticed by another party in the reasonably near future, counsel should ordinarily not notice another deposition for an earlier date without the agreement of opposing counsel.” (Los Angeles Superior Court Local Rules (“LR”) Appendix 3.A(e)(3).) “Counsel should not attempt to delay a deposition for dilatory purposes, but only if necessary to meet real scheduling problems.” (LR Appendix 3.A(e)(4).)

Here, both parties have objected to noticed depositions. However, only Plaintiff’s objections comported with CCP §§2025.450 and 2025.410. Plaintiff objected because he now lived in Singapore and the deposition was not noticed at a permissible location pursuant to §2025.250. This is further affirmed by Judge Rosenblatt’s instruction at the discovery conference on December 2, 2015 to meet and confer about deposing Plaintiff in Singapore or by videoconference. Defendants have not served a deposition notice to which a valid objection has not been raised, and thus, this Court DENIES Defendants’ motion.

Defendants’ objections are founded in LR Appendix 3.A(e)(3), which is not listed among the permissible defects in notice. (See §§2025.410, 2025.210 et. seq.) Additionally, the language upon which Defendants rely is not mandatory, but states that counsel “should ordinarily not” notice a deposition, rather than prohibiting it. (LR Appendix 3.A.(e)(3).)

Given that the original notice of Plaintiff was sent on June 4, 2015, Judge Rosenblatt instructed the parties continue to meet and confer on December 2, 2015, Plaintiff first noticed the depositions of Defendants on December 21, 2015 for dates in late February and early March, and the deadline for a motion for summary judgment is May 27, 2016, the time frame of the case would justify the deposition notices. Because Defendants did not object in compliance with the Code of Civil Procedure and did not appear, Plaintiff’s motion is GRANTED.

Sanctions

If a motion to compel deposition is granted, the court shall impose a monetary sanction unless it finds that the party subject to the sanction acted with substantial justification or other reasons why sanctions would be unjust. (CCP §2025.450(g)(1).)

Koo requests $3,890.00 in attorneys’ fees for his motion to compel. This consists of 2.5 hours by Cheryl Chang to prepare the motion & associated ex parte application at $550/hour and 6.9 hours by Ann Querns for the same at $350/hour and $100 to file and serve the motion. (Decl. Chang ¶¶23-25.) Plaintiff’s counsel makes no attestation of either her or her associate’s qualifications to merit the hourly rate. Plaintiff’s counsel does not distinguish between hours expended on the unsuccessful ex parte application and on the instant motion.

Therefore, the Court awards $100 in costs and $2,450 in fees for seven hours of attorney time at $350/hour for a total award of $2,550 on Plaintiff’s motion to compel.

Koo also requests sanctions in the amount of $4,615.00 for opposing Defendants’ motion to compel because Defendant has misused discovery by disobeying a court order. (CCP §2023.010(g).) Notably, section 2025.450 does not provide for sanctions in favor of the prevailing party, but only if the motion is granted. Sanctions pursuant to section 2023 et. seq. specifically refer to a noticed motion. (CCP §2023.040.)

Here, Koo did not notice a motion for sanctions for a misuse of discovery, but instead attempts to piggyback a motion for sanctions onto his opposition to a motion that he cannot be granted sanctions for. This does not comply with the letter of the statute.

Even assuming it was properly brought, the notice was insufficient. CCP section 1005 requires sixteen court days of time in addition to the time added by means of service, in this case two calendar days because it was served by an overnight service. The opposition was served on April 20, 2016 for a hearing on May 3, 2016, giving only nine court days of notice.

Furthermore, the court order was memorialized as ordering the parties to meet and confer on a date for the deposition of Koo, and no official order by the court is attached to any motion. The parties have clearly met and conferred and failed to come to an agreement. The fact that they did not come to an agreement on a date for Plaintiff’s deposition does not mean that they did not meet and confer.

Therefore, the request for sanctions for the costs of opposing Defendants’ motion is DENIED.