Judge: Anne Hwang, Case: 22STCV26141, Date: 2024-11-08 Tentative Ruling

Case Number: 22STCV26141    Hearing Date: November 8, 2024    Dept: 32

PLEASE NOTE:  Parties who intend to submit on this tentative must send an email to the court at sscdept32@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If the parties do not submit on the tentative, they should arrange to appear in-person or remotely.

TENTATIVE RULING

BACKGROUND

On August 12, 2022, Plaintiff Loza Abduselam filed this personal injury action against Defendants Jose Sanchez (“Sanchez”) and Universal Appliances, Kitchens, and Baths, Inc. (“Universal Appliances”) for a single cause of action of negligence. Plaintiff contends that on August 21, 2020, a vehicle owned by Defendant Universal Appliances and negligently operated by Defendant Sanchez, collided with Plaintiff’s vehicle, causing Plaintiff to sustain serious injuries and damages alleged therein.

MOTION

            Defendants Jose Sanchez and Universal Appliances, Kitchens, and Baths, Inc. now move to compel the deposition of Plaintiff Loza Abduselam and request monetary sanctions in the amount of $3,669.50. Plaintiff has not filed an opposition.

ANALYSIS

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent’s attendance and testimony.  (Code Civ. Proc., § 2025.450, subd. (a).) 

Here, Plaintiff’s Counsel, Michael McCabe declares that on February 14, 2024, Defendant properly noticed Plaintiff’s deposition for April 23, 2024, by electronic mail which was then subsequently taken off calendar. (McCabe Decl., ¶ 3, Ex. A.)

Then, on June 20, 2024, Defendant Sanchez properly noticed Plaintiff’s deposition for August 5, 2024, by electronic mail and no objection was thereafter received. (Id., ¶ 4, Ex. B.) On July 15, 2024, Defense Counsel confirmed the deposition by email and sent a zoom link to Plaintiff. (Id., Ex. C.) On August 5, 2024, Plaintiff did not show for deposition and a certificate of non-appearance was taken. (Id., ¶ 5, Ex. D.)

On September 6, 2024, Defendant Sanchez properly served a Notice of Continuance of Taking Deposition of Plaintiff scheduled for September 23, 2024. (Id., ¶ 6, Ex. E.) Plaintiff then sent a confirmation email and zoom link. (Id., Ex. F.) Despite such and without objection, Plaintiff again failed to appear for her deposition and a certificate of non-appearance was taken again. (Id., Ex. G.)

Accordingly, the motion to compel is granted.

With respect to sanctions, Defense Counsel McCabe declares that the costs of the court reporter and affidavit of nonappearance were $1,095.00 and $1,094.50 for the August 5, 2024, and September 23, 2024, depositions, respectively. (McCabe Decl., ¶7, Ex. H.) Further, McCabe sets forth that he spent three (3) hours preparing the instant motion and supporting documents at an hourly rate of $185.00 and further expects to spend an additional five (5) hours preparing any necessary reply brief and preparing and appearing for the hearing on this motion. (Id., ¶ 8.) The cost of filing this motion was $60.00. (Id.) Thus, Defense Counsel requests sanctions in the total amount of $3,669.50. (Id.)

The Court finds that sanctions are warranted but the amount requested is excessive given the nature of the motion, the lack of opposition, and that counsel can appear remotely at a hearing. Accordingly, the Court awards monetary sanctions in the amount of $2,189.50 (1.5 hours of attorney time, the filing fee, and the nonappearance fees).

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendants’ Motion to Compel Plaintiff Abduselam’s Deposition and orders Plaintiff to appear for deposition within fifteen (15) days’ notice of the Court’s orders, unless Defendants stipulate otherwise.

In addition, the Court orders Plaintiff and Plaintiff’s counsel to pay sanctions in the total amount of $2,189.50, jointly and severally, to Defendant within 30 days of the hearing on the motion.

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