Tentative Rulings

Case Number: ****7743    Hearing Date: November 21, 2019    Dept: 37

HEARING DATE: November 22, 2019

CASE NUMBER: ****7743

CASE NAME: SSAP LLC v. Kamford Investments, Inc., et al.

MOVING PARTY: Defendant and Cross-Complainant, Juan J. Piche

OPPOSING PARTY: Fidel Bravo, non-party.[1]

TRIAL DATE: February 25, 2020

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Compel Fidel Bravo to Attend Deposition

OPPOSITION: None filed as of November 20, 2019

REPLY: No opposition filed

TENTATIVE: Piche’s Motion to Compel Fidel Bravo’s attendance at deposition is GRANTED. The court awards $2,500 in discovery sanctions against Bravo for failure to participate in discovery. Defendant’s counsel to give notice

Background

This action arises in connection with Plaintiff, SSAP LLC (“SSAP”)’s ownership of an apartment complex located at 6411 South Broadway, Los Angeles, CA. SSAP filed its complaint on September 28, 2017, alleging five causes of action: (1) breach of contract, (2) negligent misrepresentation, (3) negligence, (4) trespass and (5) nuisance. The first cause of action is alleged only against defendant Kamford Investments, Inc. and the second cause of action is alleged against defendant Kamford Investments, Inc., defendant Hahn Kim Truong and defendant Amigo’s Building Materials & Hardware, Inc (“Amigos.”) The third through fifth causes of action are alleged against defendants Amigos, Joel Govea, Alma Govea and Juan Piche (“Piche”).

As to defendant Piche, the Complaint alleges that he owned an adjacent property, located at 6421 and 6421 ½ South Broadway, Los Angeles. Plaintiff alleges that Piche’s property was previously contaminated with TCE chemicals and that Piche, as the landowner, negligently failed to remediate the toxic chemicals such that they seeped into Plaintiff’s property.

On February 7, 2018, Piche filed a cross-complaint for indemnity, contribution and declaratory relief against Amigo’s, Joel Govea, Alma Govea and Kamford Investments

On January 30, 2019, the court granted Piche’s motion to compel Fidel Bravo (“Bravo”) to produce documents in response to subpoena and ordered Bravo to comply with the subpoena by February 19, 2019. Bravo was also required to pay monetary sanctions to Piche’s counsel. Piche also amended his cross-complaint to name Bravo as a new cross-defendant. Piche’s summons on his amended cross-complaint was filed that day.

On May 1, 2019, Piche served Fidel Bravo with the operative First Amended Cross-Complaint by serving a co-occupant of his residence, Rafaela Serrano at 3245 Lynwood Road, Lynwood, CA 90262. Piche also requested entry of default against Bravo on May 1, 2019 as to the original complaint and default was entered as requested.

On October 15, 2019, Piche caused the instant motion to be personally served on Bravo at his home at 3245 Lynwood Road, Lynwood, CA 90262. Piche moves this court for an order compelling Bravo’s attendance at deposition and for contempt. Bravo does not appear to have opposed the motion.

Discussion

I. Legal Standard

“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, 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).)[2] The motion must set forth specific facts justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Id. ; 2025.450, subd. (b)(1).)

II. Meet and Confer Efforts

The motion must be accompanied by a good faith meet and confer declaration under section 2016.040 or, “when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., ; 2025.450, subd. (b)(2).)

A declaration under section 2016.040 must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., ; 2016.040.) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).) “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016, internal ellipses omitted.) Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery. (Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 433-34 (Obregon), citing Townsend v. Sup. Ct. (1998) 61 Cal.App.4th 1431, 1437.)

Piche submits the Declaration of Stephen T. Holzer in support of his motion. Holzer attests that Bravo is a previous owner of Piche’s property and accordingly, was subpoenaed for deposition so that Piche may investigate his cross-complaint and determine whether other parties are potentially liable for Plaintiff’s claims. (Holzer Decl., ¶¶ 5-6.) Holzer attests that his office personally served a deposition subpoena on Bravo on June 17, 2019, requiring his attendance at deposition on July 9, 2019. (Id. at ¶¶ 6-7.) Finally, Holzer attests that he spoke with a man purporting to be Bravo on July 25, 2019 and was told that no subpoena had been served on Bravo. (Id. at ¶ 8.) Further, Holzer attests that Bravo told him he would contact him about a mutually agreeable date but did not, and that he could not reach Bravo on a subsequent attempt on August 22, 2019. (Id. at ¶¶ 9-11.)

Bravo did not file an opposition to Piche’s motion nor any evidence in opposition. Accordingly, Piche’s efforts are sufficient to meet the statutory requirements.

III. Analysis

Piche presents evidence that he properly noticed Bravo’s deposition for July 9, 2019 but that Bravo failed to appear for the deposition. (see Holzer Decl., ¶¶ 6-9, 11.) Bravo does not oppose Piche’s motion. Piche also presented evidence demonstrating that he attempted to meet and confer with Bravo by telephone, but that he was not able to secure Bravo’s appearance at his duly noticed deposition. (Holzer Decl., Exhibit G.) Finally, Piche submitted evidence that her properly served the instant motion on Bravo, but Bravo does not appear to oppose the motion.

In these circumstances, Piche’s motion is GRANTED. Bravo is ORDERED to appear for a properly noticed deposition within 30 days of the date of this order.

III. Contempt

Piche also requests that the court find Bravo in contempt of its previous order of January 30, 2019 to produce documents. Bravo does not oppose this request as no opposition has been filed.

When contempt is committed outside “the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.” (Code Civ. Proc., ; 1211, subd. (a).) “The affidavit is like a complaint in a criminal case; it frames the issues and must charge facts which show a contempt has been committed.” (Reliable Enters. v. Sup. Ct. (1984) 158 Cal.App.3d 604, 617, overruled on other grounds as recognized in Mitchell v. Sup. Ct. (1989) 49 Cal.3d 1230, 1248.) The substantive issues involved in a contempt proceeding are: (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience. (Conn v. Sup. Ct. (1987) 196 Cal.App.3d 774, 784.)

Here, it is undisputed that the court entered an order on January 30, 2019 requiring Bravo to produce documents in compliance with Piche’s subpoena by February 19, 2019. Piche contends that Bravo has failed to comply with this order (Motion, 4-6; Holzer Decl., ¶14, Exhibit G.) Bravo does not oppose this contention.

Before holding any contempt hearing, the court will first award monetary sanctions against Bravo and in favor of Piche in the amount of $2,500. Failure to pay the sanctions or to participate in the discovery may result in more serious sanctions in the future.