Judge: Anne Hwang, Case: 19STCV05881, Date: 2023-11-17 Tentative Ruling

Case Number: 19STCV05881    Hearing Date: November 17, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

            On June 14, 2021, Plaintiff Jose Noe Castillo (Plaintiff) filed a complaint alleging negligence, battery, intentional infliction of emotional distress, and aiding and abetting.

            Defendant Potrero, Inc. (Defendant) now moves to compel Plaintiff’s deposition. Plaintiff opposes and Defendant replies.

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 . . . 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.” (Code Civ. Proc., § 2025.450, subd. (a).)

“A motion under subdivision (a) [above] shall comply with both of the following:

1. The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

2. The motion shall be accompanied by a 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).)

If a motion is granted, the court shall impose a monetary sanction in favor of that party unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the sanction unjust. (Code Civ. Proc. § 2025.450 (g).)

MEET AND CONFER

Defendant’s counsel, Randall J. Clement, declares he met and conferred with Plaintiff’s counsel following the non-appearance. (Clement Decl. ¶ 4.) Therefore, it appears the meet and confer requirement is satisfied.  

DISCUSSION

Defendant asserts that on March 27, 2023, it served a Notice of Taking Deposition on Plaintiff, set for April 26, 2023. (Clement Decl. ¶ 2, Exh. A.) Plaintiff failed to appear and Defendant obtained a Certificate of Non-Appearance. (Id. ¶ 3, Exh. B.)

Plaintiff argues that the discovery cut-off has passed pursuant to the Court’s June 8, 2023 order. On June 8, 2023, the Court denied Plaintiff’s ex parte application to continue trial and advanced and vacated the current trial date on its own motion. (Min. Order, 6/8/23.) The Court then ordered: “SUBJECT TO FURTHER ORDERS OF THE COURT, ALL DISCOVERY AND RELATED DISCOVERY MOTION CUT OFF DATES SHALL BE ASSOCIATED WITH THE CURRENT TRIAL DATE OF JULY 10, 2023.” (Id.) However, on October 19, 2023, at a trial setting conference, the Court set the current trial date for December 12, 2023 and stated: “All disc/motion cut-off based on the trial date.” (Min. Order, 10/19/23.) Therefore, this motion is timely.  

Defendant has established that Plaintiff failed to object or appear at the noticed deposition on April 26, 2023, and therefore the motion to compel is granted.

Defendant seeks $1,344.80 in monetary sanctions representing a $158 hourly rate and two hours to prepare this motion, two hours to prepare for the hearing, the $60 filing fee, and the $652.80 Court Reporter fee. Plaintiff argues he could not be reached during the time period when his deposition was originally set and thus, sanctions should not be imposed. (Opp., 2, 3.) However, Plaintiff does not include a declaration attesting to these facts, and, more importantly, Plaintiff’s absence does not provide substantial justification for the discovery abuse. Therefore, the Court awards sanctions in the amount of $1,028.80 (2 hours of attorney time, the filing fee, and court reporter fee).[1]

CONCLUSION AND ORDER

Accordingly, Defendant Potrero, Inc.’s motion to compel Plaintiff’s deposition is GRANTED. Plaintiff is ordered to appear for deposition within 5 days.

The Court GRANTS Defendant’s request for monetary sanctions against Plaintiff in the reduced amount of $1,028.80. Said monetary sanctions are to be paid to counsel for Defendant within 30 days of the date of this order.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.