Judge: Anne Hwang, Case: 21STCV18151, Date: 2024-03-12 Tentative Ruling

Case Number: 21STCV18151    Hearing Date: March 12, 2024    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 May 14, 2021 Plaintiff Esther Ayala Betancourt (“Plaintiff”) filed a complaint against Defendants Los Angeles County Metropolitan Transportation Authority, Doe 1 (bus driver), and Does 2 to 50 for injuries allegedly sustained while Plaintiff was riding on a bus. On December 30, 2021, Plaintiff filed an amendment to the complaint, substituting Defendant Antoine Dean Jackson (“Jackson”) as Doe 2.

            On March 25, 2022, Jackson filed an answer. On December 11, 2023, Jackson filed a cross complaint against Los Angeles County Metropolitan Transportation Authority (“LACMTA”).

            LACMTA now moves to compel Jackson’s deposition. LACMTA also seeks monetary sanctions. Jackson opposes and LACMTA 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

The Declaration of Lilia Clement does not set forth facts showing that counsel contacted Jackson or Jackson’s counsel after the non-appearance. Therefore, the meet and confer requirement has not been met. 

DISCUSSION

Here, LACMTA has served notices setting Jackson’s deposition for June 26, 2023, July 6, 2023, and September 20, 2023. (Clement Decl., Exh. A, C, D.) The first two depositions were taken off calendar by LACMTA after Jackson was unavailable. LACMTA asserts that during this time, Jackson did not provide alternative dates. Therefore, after serving notice of the September 20, 2033, Jackson did not provide a formal objection. Jackson did not appear at the September 20, 2023 deposition and a certificate of non-appearance was obtained. (Id. ¶ 6, Exh. E.)

In opposition, Jackson’s counsel argues she was recently retained in this matter and has been unable to contact Jackson to find dates. Jackson’s counsel argues the motion is moot since she is unopposed to scheduling the deposition once Jackson is contacted. (Opp., 2.) Counsel also states that Jackson’s insurer plans to file a motion to intervene on Jackson’s behalf.[1]

Although new counsel has been retained, Jackson failed to appear or serve a valid objection to her September 20, 2023 deposition. Jackson does not provide facts about previous efforts to locate Defendant throughout 2023. Therefore, because Jackson failed to appear, the motion to compel is granted.  

LACMTA seeks $2,500 in monetary sanctions based on a $250 hourly rate. The Court finds sanctions are warranted against Jackson only, since Jackson’s counsel was recently retained. However, the amount requested is excessive in light of the nature of the motion. Accordingly, the Court awards monetary sanctions in the amount of $500 (2 hours of attorney time).

CONCLUSION AND ORDER

Accordingly, LACMTA’s motion to compel Defendant Antoine Jackson’s deposition is GRANTED. Antoine Jackson shall appear for deposition within 30 days.

Antoine Jackson shall pay monetary sanctions in the amount of $500 to counsel for LACMTA within 30 days.  

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