Case Number: BC528263 Hearing Date: February 09, 2015 Dept: 93
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES, STANLEY MOSK COURTHOUSE
DEPARTMENT 93

CHANAN KLARISTENFELD,

Plaintiff(s),

v.

JEWISH COMMUNITY FOUNDATION OF THE JEWISH FEDERATION-COUNCIL OF GREATER LOS ANGELES, et al.,

Defendant(s).

Case No.: BC528263

Hearing Date: February 9, 2015

[TENTATIVE] ORDER RE:
MOTION OF DEFENDANT, JEWISH FEDERATION-COUNCIL OF GREATER LOS ANGELES, TO: (1) COMPEL DEPOSITION OF PLAINTIFF; AND (2) COMPEL RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET TWO)

The Motion of defendant, JEWISH FEDERATION-COUNCIL OF GREATER LOS ANGELES, to COMPEL DEPOSITION OF PLAINTIFF, is GRANTED. Plaintiff, Chanan Klaristenfeld is ordered to appear for deposition within twenty days.

The Motion of defendant, JEWISH FEDERATION-COUNCIL OF GREATER LOS ANGELES, to COMPEL RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET TWO), is DENIED.

Additionally, as to both motions, Plaintiff’s counsel is ordered to pay sanctions to Defendant, by and through Counsel, in the amount of $1,110 within twenty days.

BACKGROUND

This is a premises liability case arising out of an incident that occurred on November 23, 2011. Chanan Klaristenfeld (“Plaintiff”) alleges that he went to the property located at 22622 Vanowen Street, in Canoga Park, CA (“Subject Premises”) to retrieve his bag of swimming equipment, and that while doing so, a life-saving backboard that had been leaning against a wall next to him fell, breaking his thumb.

On November 30, 2013, Plaintiff filed a complaint asserting causes of action for Premises Liability, Willful Failure to Warn, and Negligence against the Jewish Community Foundation of the Jewish Federation-Council of Greater Los Angeles (“Defendant”). Defendant filed and served the instant motions to compel on November 4, 2014 and December 4, 2014. Plaintiff filed and served oppositions to the instant motions on January 23, 2015. Defendant filed reply papers on February 2, 2015.

COMPEL DEPOSITION

A. CCP §2025.450(a)

CCP §2025.450(a) states in relevant part:

“If, after service of a deposition notice, a party to the action . . . , 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 . . . 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 . . . described in the deposition notice.”

According to the declaration of Defense Counsel, Defendant served Plaintiff with a notice of deposition setting the deposition for September 10, 2014. On September 8, 2014, Plaintiff’s Counsel sent an email indicating that Plaintiff was not available on September 10, 2014, and requesting that the deposition be rescheduled for November. Accordingly, on September 17, 2014, Defendant served Plaintiff with an amended deposition notice setting the deposition for November 13, 2014.

On October 3, 2014, Plaintiff’s Counsel sent an email to Defense Counsel advising that November 13, 2014 was no longer available. The parties attempted to reschedule the deposition, but Plaintiff’s Counsel only provided two dates earlier than February 2015. On November 13, 2014, Plaintiff failed to appear for his deposition. Defendant took a Certificate of Non Appearance.

In opposition, Plaintiff contends he never refused to attend his deposition. Rather, he asserts he failed to appear because of his Counsel’s calendar conflicts. CCP §2025.450(a), however, only requires a showing that a deponent failed to appear for examination. Thus, the Court finds Defendant met the requirements of CCP §2025.450(a).

B. CCP §2025.450(b)

Additionally, a motion to compel deposition must be accompanied by a meet and confer declaration under CCP §2016.040. CCP §2025.450(b)(2). In this case, Defendant demonstrated repeated attempts to meet and confer with Plaintiff. Specifically, Plaintiff’s deposition was rescheduled once at the request of Plaintiff’s Counsel. Moreover, the parties exchanged numerous emails regarding feasible dates for Plaintiff’s deposition.

Accordingly, the Court finds Defendant satisfied the meet and confer requirement. Additionally, because Defendant also met the requirements of CCP §2025.450(a), this Motion to Compel Plaintiff’s Deposition is GRANTED.

PRODUCTION OF DOCUMENTS

CCP §2031.300 provides:

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, . . .

(b) The party making the demand may move for an order compelling response to the demand.”

According to the declaration of Defense Counsel, Defendant served Request for Production of Documents (Set Two) on Plaintiff on July 1, 2014. The declaration of Defense Counsel also states that Plaintiff was given a two-week extension to provide responses. On August 18, 2014, Plaintiff provided unverified responses. The unverified responses indicated that certain documents would be produced, but as of the filing of this motion, no documents have been provided. On December 11, 2014, however, Plaintiff provided complete verified responses with all responsive documents. Opposition, 3:25, 26; Exh. 6. Thus, Plaintiff responded to Request for Production of Documents (Set Two), and this motion to compel must be DENIED.

SANCTIONS

A. COMPEL DEPOSITION

If a motion to compel deposition is granted, the court shall impose a monetary sanction “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.” CCP §2025.450(g)(1).

Plaintiff has unsuccessfully opposed this Motion to Compel Plaintiff’s Deposition. Thus, sanctions against Plaintiff are warranted. In Defendant’s notice of motion, Defendant seeks monetary sanctions of $1,264.50 against Plaintiff and Plaintiff’s Counsel. The declaration of Defense Counsel indicates that the hourly rate for his services is $165, and that the motion required 2.8 hours to draft, the reply required 2 hours to draft, and that another 2.5 hours will be required for travel and appearance. The declaration also states this motion required a $60 filing fee.

In light of the simplicity of the instant motion, the amount should be reduced accordingly. Thus, the Court awards a total of $555 in sanctions based on a rate of $165 per hour for 3 hours total (1 hour to prepare the motion, 1 hour to prepare the reply, and 1 hour to appear), plus the $60 filing fee. These sanctions are awarded against Plaintiff’s Counsel only as there does not appear to be substantial justification in the record to award them also against Plaintiff.

B. PRODUCTION OF DOCUMENTS

Pursuant to CCP §2023.010, “[f]ailing to respond or to submit to an authorized method of discovery” is a misuse of the discovery process. Additionally, “[T]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” CCP §2023.030.

In this case, Plaintiff provided responses to Request for Production of Documents (Set Two) on December 11, 2014, even though they were due on August 18, 2014. Because of the nearly four month delay and the need for Defense Counsel to make the motion, the Court finds substantial justification for awarding sanctions against Plaintiff’s counsel with respect to Request for Production of Documents (Set Two).

In Defendant’s notice of motion, Defendant seeks monetary sanctions of $1,231.50 against Plaintiff and Plaintiff’s Counsel. The declaration of Defense Counsel indicates that the hourly rate for his services is $165, and that the motion required 2.6 hours to draft, the reply required 2 hours to draft, and that another 2.5 hours will be required for travel and appearance. The declaration also states this motion required a $60 filing fee.

In light of the simplicity of the instant motion, the amount should be reduced accordingly. Thus, the Court awards a total of $555 in sanctions based on a rate of $165 per hour for 3 hours total (1 hour to prepare the motion, 1 hour to prepare the reply, and 1 hour to appear), plus the $60 filing fee. These sanctions are awarded against Plaintiff’s Counsel only as there does not appear to be substantial justification in the record to award them also against Plaintiff.

JEWISH FEDERATION-COUNCIL OF GREATER LOS ANGELES is ordered to give notice of this ruling.

Dated: February 9, 2015

_______________________
Howard L. Halm
Judge, Los Angeles Superior Court