Judge: Anne Hwang, Case: 22STCV31914, Date: 2024-09-23 Tentative Ruling

Case Number: 22STCV31914    Hearing Date: September 23, 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

            Defendant J.B. Hunt Transport, Inc. (“Defendant”) moves to compel Plaintiff Jesus Cuevas Hernandez’s (“Plaintiff”) deposition. Defendant also seeks monetary sanctions. On September 16, 2024 and September 17, 2024, Plaintiff filed an opposition and supplemental opposition respectively. The Court notes that an opposition to this motion was due September 10, 2024. Nevertheless, the Court will exercise its discretion to review the opposition papers absent prejudice to Defendant. No reply 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 Austin Smith, Defendant’s counsel, sets forth facts that he inquired about Plaintiff’s non-appearance. (Smith Decl. ¶ 25.) Therefore, the meet and confer requirement is met.

DISCUSSION

On March 7, 2024, Defendant served a notice of deposition, set for March 29, 2024, which was agreed to by Plaintiff’s counsel. (Smith Decl. ¶ 4-6, Exh. A.) On March 26, 2024, Plaintiff claimed there was a “calendar conflict”, and the deposition was reset.

On March 27, 2024, Defendant served a Notice of Continuance of Taking Deposition, set for May 13, 2024. (Smith Decl. ¶ 10.) On May 9, 2024, Plaintiff claimed there was a “last minute scheduling issue” and the deposition was reset.

On May 22, 2024, Defendant served a second notice of continuance for June 4, 2024. (Id. ¶ 14.) On June 2, 2024, Plaintiff’s counsel cancelled, stating they were engaged in urgent matters. Afterward, Defendant noticed a third notice of continuance for July 3, 2024. On June 28, 2024, Plaintiff’s counsel claimed he could not attend due to two mediations on that date. As a result, Defendant served a fourth notice of continuance for July 26, 2024, which was agreed to by Plaintiff. Then, on July 17, 2024, Plaintiff’s counsel asserted he would not produce Plaintiff unless Defendant produced its own witnesses for deposition on the same week. (Id. ¶ 21.)

On July 26, 2024, Plaintiff failed to appear at his deposition, and a Certificate of Non-Appearance was obtained. (Smith Decl. ¶ 23-24, Exh. K.)

In opposition, Plaintiff asserts this motion is moot since his deposition was taken on August 27, 2024. (Agarwal Decl., Exh. A.)

No reply has been filed. Therefore, since it appears Plaintiff’s deposition was taken, the motion to compel is denied as moot.

According to Plaintiff’s supplemental opposition, it appears this motion may still be on calendar for sanctions.

Defendant requests $3,687.75 in monetary sanctions against Plaintiff and his attorney of record, representing a $225 hourly rate and $2,112.75 for the court reporter, videographer, and Spanish interpreter. (Smith Decl., Exh. M.) Monetary sanctions may be imposed against one engaging in the misuse of the discovery process, or any attorney advising that conduct, for “reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc. § 2023.030(a).) Here, the Court does not find that Plaintiff or Plaintiff’s counsel acted with substantial justification or that other circumstances make the imposition of a sanction unjust. (See id.) Accordingly, the Court finds that reasonable attorney’s fees are warranted for bringing the motion. (Cal. R. Ct. 3.1348 [“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though … the requested discovery was provided to the moving party after the motion was filed.”].) However, there is no evidence that the court reporter, videographer, or Spanish interpreter were a result of Plaintiff’s conduct, as counsel advised Defendant a week prior that Plaintiff would not be produced, which appears to be sufficient time to cancel without incurring fees. Accordingly, the Court grants monetary sanctions in the amount of $450 (2 hours of attorney time to prepare the motion).

CONCLUSION AND ORDER

Accordingly, Defendant’s Motion to Compel Deposition of Plaintiff is denied as moot.

Plaintiff and counsel of record, jointly and severally, are ordered to pay $450 to counsel for Defendant within 30 days.

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