Judge: Anne Hwang, Case: 20STCV39538, Date: 2023-10-06 Tentative Ruling

Case Number: 20STCV39538    Hearing Date: October 6, 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

MOTION

Defendant Hector Cuellar Merida (“Defendant”) moves for an order compelling the deposition of Dr. Amin Javid and the deposition of Plaintiff Debbie Warren (“Plaintiff”). Defendant also seeks an order imposing monetary sanctions against Plaintiff.

ANALYSIS

Motion to Compel Compliance with Deposition Subpoena

“Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service: (1) Personal attendance and testimony, if the subpoena so specifies.” (Code Civ. Proc., § 2020.220, subd. (c)(1).) Code of Civil Procedure section 1987.1 provides, “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1.)

Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive. (Code Civ. Proc., § 1987.2, subd. (a).)

Civil Procedure section 2023.030(a) provides that the “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.”

Here, counsel for Defendant declares as follows: Plaintiff sought treatment from Dr. Amin Javid for her alleged injuries arising from the accident at issue. (Solis Decl. ¶ 3.) On June 1, 2023, Defendant served a notice of taking of deposition and deposition subpoena of Dr. Javid and sent a confirming email to Plaintiff’s counsel. (Id. at ¶ 4.) On July 11, 2023, Dr. Javid and defense counsel appeared for the deposition. Plaintiff’s counsel did not appear until defense counsel’s office called counsel; Plaintiff’s counsel then stated he was not available, he was not provided adequate notice, and the deposition had previously been cancelled. (Id. ¶ 5.) Counsel sent written correspondence to Plaintiff’s counsel who has still not responded. (Id. ¶ 6.)

Counsel validly served a deposition subpoena and a notice of taking of deposition. No objections were served. Pursuant to the subpoena, Dr. Javid appeared. However, the deposition could not proceed because of Plaintiff’s counsel’s conduct. No opposition to this motion has been filed. The Court grants Defendant’s motion to compel the deposition of Dr. Javid.

In addition, the Court finds that sanctions are warranted due to Plaintiff’s discovery abuse. Defendant has incurred the following costs: $1,260 for Dr. Javid’s appearance fees, $938.50 for court reporter fees, $2,300 in attorney’s fees, and $60 filing fee. While the Court finds the attorney’s fees excessive because they include preparing for the deposition, the other fees are reasonable. Accordingly, the Court orders Plaintiff’s counsel to pay sanctions in the amount of $3,408.50 (5 hours of attorney’s fees at $230 an hour, expert and court reporter fees, and the filing fee).

Motion to Compel Deposition of Plaintiff

“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 under subdivision (a) is granted, the court shall impose a monetary sanction . . . 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, subd. (g)(1).)

Counsel for Defendant states that the deposition of Plaintiff has been noticed three times. (Muench Decl. ¶ 4.) Although objections were not served, Plaintiff’s counsel notified defense counsel that he could not attend the first two. (Muench Decl. ¶ 5, 6.)  Defendant’s counsel then had a telephonic conversation with counsel for Plaintiff, who indicated that if Defendant did not pay his client’s policy limits, Plaintiff’s counsel would not allow any depositions to go forward and Defendant would have to file discovery motions. (Muench Decl. ¶ 7; Exh. F.) Defendant’s counsel noticed the third deposition of Plaintiff, and Plaintiff’s counsel stated he is not available and would not provide alternative dates until he spoke with counsel. (Muench Decl. ¶ 8.)

Plaintiff, through counsel, has expressed an intent not to appear for deposition. Moreover, by not filing an opposition, Plaintiff’s counsel has admitted the merits of this motion. The Court therefore grants the motion to compel.

Moreover, sanctions are warranted for the discovery abuse. Defendant requests sanctions in the amount of $2,685 against Plaintiff for attorney’s fees and costs with regard to this motion, however that amount includes the time spent preparing for the deposition. The Court finds that sanctions in the amount of $1,210 are reasonable and warranted (5 hours of attorney time plus $60 filing fee).

CONCLUSION AND ORDER

Accordingly, Defendant’s motion to compel the deposition of Dr. Javid is granted. Dr. Javid is ordered to appear for deposition at a time and location provided by Defendant, within 20 days.

Plaintiff’s counsel is ordered to pay sanctions in the amount of $3,408.50 to counsel for Defendant within 20 days.

Defendant’s motion to compel the deposition of Plaintiff is granted. Plaintiff is ordered to appear at a time and location provided by Defendant, within 20 days.

Plaintiff is ordered to pay sanctions in the amount of $1,210 to counsel for Defendant within 20 days.

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