Judge: Anne Hwang, Case: 22STCV03154, Date: 2023-10-23 Tentative Ruling

Case Number: 22STCV03154    Hearing Date: October 24, 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 January 26, 2022 Plaintiff Pedro Pizano (Plaintiff) filed a complaint against Defendants Powerhouse Grading Inc., Caesar Alexander Lopez, JDP Equipment Rental Inc., James Leo McDermott, and Does 1 to 50 for injuries resulting from a motor vehicle accident.

            Defendants Powerhouse Grading Inc., Caesar Alexander Lopez, and JDP Equipment Rental Inc. (Defendants) now move to compel Plaintiff’s deposition. No opposition has been filed.

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 Rayelle Sabo states she has met and conferred with Plaintiff’s counsel via telephone and email. (Sabo Decl. ¶ 13.)  Based on the representations in the declaration, and the attached “Exhibit I” of correspondence, it appears Defendants have made a good faith attempt to resolve this issue.

DISCUSSION

Defendants have noticed Plaintiff’s deposition seven times. Each time, Plaintiff has objected to the depositions due to unavailability. However, Plaintiff has not worked with Defendants to schedule a mutually beneficial time. According to Defendants, Plaintiff has been unresponsive. Most recently, Plaintiff agreed to a deposition on July 24, 2023 at 10am. (Sabo Decl. ¶13, Exh. I.) Defendants produced a notice of deposition for that date. (Id. ¶ 12, Exh. H.) However, it appears Plaintiff has not appeared. Based on this, the Court grants Defendants’ motion to compel Plaintiff’s deposition.

Defendants seek $2,260.00 in monetary sanctions representing a $275 hourly rate and eight hours, plus the $60 filing fee. However, the notice of motion did not seek sanctions and did not specify against whom sanctions were sought and in what amount. Accordingly, the Court denies the request for sanctions as procedurally defective. (See, e.g., Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207-08.)

CONCLUSION AND ORDER

Accordingly, Defendants Powerhouse Grading Inc., Caesar Alexander Lopez, and JDP Equipment Rental Inc. motion to compel Plaintiff’s deposition is GRANTED.  Plaintiff shall appear for deposition within 30 days.

            The Court denies the request for sanctions.

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