ABRAMS FIG INC. VS ARTHUR GONZALEZ ET AL

Tentative Rulings

Case Number: NC060388    Hearing Date: December 12, 2019    Dept: S27

Defendant SoCal Restaurant Group, LLC moves to compel the deposition of Plaintiff Abrams Fig, Inc.’s person most knowledgeable (“PMK”) and of Travis Hummell. Defendant requests $9,295 in monetary sanctions against plaintiff and counsel jointly and severally. Although Defendant refers to Abrams-Fig and Hiumell collectively as Plaintiffs, Hummell is not a party to the action.

The motion is prolix. All the court required was proof of the notice and the response or non-response. Pared to these essentials, Defendant requested dates for September 2019. The court is presented with exhibit after exhibit with e-mails discussing both missing verifications and potential dates for September. The same attachments are on every exhibit. The court appreciates that counsel made serious efforts to meet and confer before noticing the deposition but Exhibits A – E are mostly wasted space.

It is not until Exhibit F that the court can see the PMK deposition notice was served on September 17, 2019 for a deposition on October 7, 2019. The topic noticed was “all facts and circumstances relevant to the allegations contained in Plaintiff’s complaint.”

Exhibit G is the notice of deposition for Travis Hummell. It was likewise served on September 17, 2019 but for a deposition on October 8, 2019.

Plaintiff’s counsel finally, after formal notice, sent an e-mail about his “scheduling issues” and that the PMK was too busy travelling to sit for deposition in September. Defendant’s response that he had repeatedly tried to obtain mutually agreeable dates, that with trial pending he wanted depositions in September, and the warned the date would stand and a certificate of non-appearance would be taken. He asks if Mr. Hummell is also travelling and unavailable. Under the circumstances, the court finds this response was reasonable and justified. The court is again given repetitions of the same attachments in an e-mail chain over and over – Plaintiff asserted he had provided four dates (in November) which were the earliest dates available.

It appears Defendant relented because exhibit K is a notice of PMK deposition served on October 7 for deposition November 12, 2019. Exhibit L is the re-notice of deposition of Travis Hummell for November 13, 2019.

Exhibit M is an amended notice of the PMK deposition, now for October 13, 2019. This contained extensive categories for document production.

Travis Hummell’s deposition was also amended for a deposition on November 14, 2019 and also contained extensive categories for document production.

The amended notices were served more than 10 days before the respective dates of deposition.

Exhibit O is an e-mail from Plaintiff’s counsel. It is not a formal objection. It raises what Plaintiff’s counsel sees as deficiencies in Defendant’s own discovery responses and ends with a refusal to have his clients sit for deposition.

Exhibit Q – R are CSR certificates of non-appearance.

Plaintiff’s opposition rests solely on a failure to adequately meet and confer. Given the history, the court will not deny relief on this ground. It is doubtful any further discussion would have resolved this issue. Plaintiffs is incorrect that the failure requires denial “as a matter of law” and offers no authority that the failure, in Plaintiff’s opinion, is jurisdictional. Given that the refusal to appear had no legal basis, Plaintiff is not in a position to insist Defendant make further repeated efforts.

The court will grant the motions and set dates certain of Defendant’s choosing. It is telling that there is no formal objection to the deposition notices because deficient discovery responses are not a basis to unilaterally refuse to sit for a properly noticed deposition. Plaintiff could have sought a protective order or moved to compel further responses, but instead chose to unilaterally withhold the deponents.

The request for monetary sanctions is inflated. The motion has only eight pages in substance and voluminous exhibits which are largely repetition of the same attachments.

Defendant claims 7 hours to have a paralegal draft this motion (at $175 per hour) while counsel (with rate of $375 per hour) “expects” to spend four hours reviewing the opposition, 3 hours for a reply (which the court presumes he will personally draft) and 3 hours travel time for a grand total of 20 hours ($8,725 for the attorney and $1,225 for the paralegal)

The court doubts it took seven hours to draft eight pages. Neither counsel nor the paralegal took the time to edit the exhibits so only the essential information was present. The opposition was brief, as was the reply.

“‘A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.’” (Ketchum v.

Moses (2001) 24 Cal.4th 1122, 1137.)

In the present case, the court will only reduce the amount. Plaintiff delayed offering specific dates and then, somewhat arrogantly, took the position he could cancel the deposition due to his dissatisfaction with Defendant’s discovery responses. If he had true concerns he would have sought a protective order. Instead he placed the burden on Defendant to bring this motion.

The court will order monetary sanctions of $3,000 against Michael Zar, counsel for plaintiff, personally. Sanctions are not imposed on Plaintiff. Sanctions are payable within 30 days.