DIBARTOLO vs PETER J. KIM, DDS A PROFESSIONAL CORPORATION, et al.

23CV007580: DIBARTOLO vs PETER J. KIM, DDS A PROFESSIONAL CORPORATION, et al. 05/14/2025 Hearing on Motion to Compel Attendance at Deposition in Department 54

Tentative Ruling

NOTICE:

PLEASE TAKE NOTICE that any oral arguments regarding this tentative ruling will be heard in Department 28, located at 720 9th Street, Sacramento, CA, the Hon. Richard C. Miadich presiding. Should argument be requested by either party, the requesting party must call the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the hearing, request the hearing, and notify the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

Any party who wishes to contest the tentative ruling below must:

(1) request a hearing by calling the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the noticed hearing date, and leave a voicemail message (a) identifying themselves as the party requesting oral argument; (b) indicating the specific matter/motion for which they are requesting oral argument; and (c) confirming that they have notified the opposing party of their intention to appear; and

(2) advise the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

If a hearing is not requested by 4:00 p.m. on the Court day before the noticed hearing date, the tentative ruling will become the final order of the Court.

If a hearing is requested, the Court prefers in-person attendance by the parties. However, parties may appear by Zoom unless the Court specifically orders in-person attendance. Parties choosing to appear by Zoom are reminded, however, that a Zoom appearance is still a formal appearance before the Court. Parties appearing via Zoom should do so from a quiet location, free from undue distractions, and wear attire suitable for an in-person court appearance.

The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link:

https://saccourt-ca-gov.zoomgov.com/my/sscdept28

SIP Address:

16039062174@sip.zoomgov.com

(833) 568-8864

23CV007580: DIBARTOLO vs PETER J. KIM, DDS A PROFESSIONAL CORPORATION, et al. 05/14/2025 Hearing on Motion to Compel Attendance at Deposition in Department 54

ID: 16039062174

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING

Plaintiff Morgan DiBartolo’s (“Plaintiff”) motion to compel Defendant in pro per Peter Kim (“Dr. Kim”) to appear and testify at his deposition is UNOPPOSED and GRANTED as follows.

On December 20, 2024, Plaintiff noticed Dr. Kim’s deposition for January 8, 2025. Dr. Kim appeared as scheduled but stated that he had prepared for his deposition in a separate lawsuit and thus refused to proceed. On January 8, 2025, Plaintiff served an amended deposition notice for January 23, 2025. Dr. Kim did not respond to the amended deposition notice and did not appear on the scheduled date. On January 27, 2025, Plaintiff’s counsel twice called Dr. Kim at the phone number listed on the order granting Dr. Kim’s prior counsel’s motion to withdraw, but Dr. Kim did not answer and did not respond to the voicemails left by Plaintiff’s counsel.

Code of Civil Procedure section 2025.450(a) states, in part: “If, after service of a deposition notice, a party to the action[,] without having served a valid objection, fails to appear for examination, the party giving the notice may move for an order compelling the deponent’s attendance and testimony.” Here, since Dr. Kim failed to appear for his deposition on

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV007580: DIBARTOLO vs PETER J. KIM, DDS A PROFESSIONAL CORPORATION, et al. 05/14/2025 Hearing on Motion to Compel Attendance at Deposition in Department 54

January 23, 2025 after being served with the amended deposition notice and did not serve any objection, Plaintiff is entitled to an order compelling Dr. Kim to appear and testify at his deposition. Accordingly, Plaintiff’s motion is GRANTED.

Plaintiff also requests sanctions in the amount of $3,650 based on three hours of one attorney’s time at $550 per hour and five hours of another attorney’s time at $400 per hour. (See Stewart Decl., ¶ 10; Searcy Decl., ¶ 2.) Where a motion to compel a party’s deposition attendance is granted, monetary sanctions are mandatory “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.” (Code Civ.

Proc. § 2025.450(g)(1).) Since Dr. Kim has not opposed the motion, there is not showing of substantial justification or unjust circumstances. Thus, Plaintiff’s request for sanctions is GRANTED in the reduced amount of $1,500, representing five total hours at $300 per hour.

Dr. Kim shall appear for his deposition on June 11, 2025 or a later date agreed to by the parties in writing, but by no later than June 30, 2025. Dr. Kim shall pay the sanctions to Plaintiff’s counsel by no later than May 26, 2025, and if not paid by that date, Plaintiff may prepare for the Court’s signature a formal order granting the sanctions, which may then be enforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)