Judge: Anne Hwang, Case: 22STCV21753, Date: 2023-10-16 Tentative Ruling

Case Number: 22STCV21753    Hearing Date: October 25, 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 July 6, 2022, Plaintiff Il Sook Park (Plaintiff) filed a complaint against Defendants Jeffrey Gallup, Celeste Valentin Canlas, and Does 1 to 50 for injuries related to a motor vehicle accident.

Plaintiff now moves to compel the deposition of Defendant Jeffrey Gallup (Defendant). 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 Evan Jacobi describes how Plaintiff has corresponded with Defendant throughout the year to schedule the deposition. (Jacobi Decl. ¶ 11, 12, 17, 18, Exh. 13.) Thus, based on the declaration and attached emails, it appears Plaintiff has made a good faith attempt to resolve this issue.

DISCUSSION

Plaintiff has noticed Defendant’s deposition five times between January 2023 and August 2023. Defendant has yet to appear for a deposition. Defendant’s Fourth Noticed deposition was set to take place on July 7, 2023, as requested by Defendant’s counsel. (Jacobi Decl. ¶ 15, 16, 17, Exh. 11, 12.) Defendant’s counsel did not inform Defendant of the deposition and Defendant did not appear. Based on the fact Defendant has failed to appear for a noticed deposition, and did not serve objections, the motion to compel is granted. 

Plaintiff seeks $3,060.00 in monetary sanctions representing a $250 hourly rate and twelve hours, plus the $60 filing fee. Plaintiff has included hours spent noticing the previous depositions. The Court finds the amount requested to be excessive in light of the nature of the motion and the lack of an opposition, and therefore the Court awards sanctions in the reduced amount of $560.00 (2 hours of attorney time and the $60 filing fee.) In addition, the motion seeks sanctions against Plaintiff and his counsel. However, the Court notes that Defendant’s counsel is seeking to be relieved due to a breakdown in the attorney-client relationship, and therefore it does not appear that the attorneys have counseled the discovery abuse. Accordingly, the Court finds an insufficient basis to award monetary sanctions against Defendant’s counsel.

CONCLUSION AND ORDER

Accordingly, Plaintiff Il Sook Park’s motion to compel Defendant’s deposition is GRANTED. Defendant shall appear for deposition within 30 days.

Defendant Jeffrey Gallup is ordered to pay $560.00 in monetary sanctions to counsel for Plaintiff within 30 days.

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