Judge: Anne Hwang, Case: 23STCV06185, Date: 2024-08-20 Tentative Ruling

Case Number: 23STCV06185    Hearing Date: August 20, 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

            Plaintiff Juanito de la Cruz Hernandez (“Plaintiff”) moves to compel Defendant Hercules Shane Gutierrez’s (“Gutierrez”) deposition. Plaintiff also seeks monetary sanctions against Gutierrez and his counsel of record. Defendants Hercules Shane Gutierrez, Fondas Electric, Inc., Jet Speed Plumbing, Inc., and Ritz Plumbing, Inc. (“Defendants”) oppose and Plaintiff 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 Luis J. Garcia, Plaintiff’s counsel, states that he contacted Gutierrez’s counsel on June 3, 2024 and June 7, 2024 to obtain new dates for the deposition. (Garcia Decl. ¶ 5-6.) Therefore, it appears Plaintiff attempted to resolve the issue in good faith.

DISCUSSION

Plaintiff alleges that Gutierrez crashed his vehicle into Plaintiff’s parked car, while Plaintiff was in the passenger seat. On April 26, 2024, Plaintiff served a deposition notice on Gutierrez, set for May 29, 2024. (Garcia Decl. ¶ 3, Exh. A.) On May 28, 2024, Gutierrez’s counsel stated Gutierrez would not be attending the deposition but failed to serve a timely objection. Since then, Gutierrez’s counsel has failed to provide alternative dates.

In opposition, Defendants’ counsel argues she could not locate Gutierrez and therefore was forced to cancel the deposition the day before. (Nydahl Decl. ¶ 3-4.) Defendants hired an investigator and in late-July 2024, the investigator located Gutierrez. (Id. ¶ 7-8.) However, Gutierrez has not returned any attempts to communicate, which included leaving a voicemail on his phone every day for the week of July 29, 2024. (Id. ¶ 10.) Counsel further declares that she has never recommended any conduct to impede any deposition or to not appear. (Id. ¶ 11.) As a result, Defendants’ counsel request that sanctions be denied as to counsel and/or reduced.

In reply, Plaintiff contends these efforts to locate Gutierrez were never communicated.

Nevertheless, because it does not appear that Gutierrez served a timely objection and failed to proceed with the deposition, the motion to compel is granted.

Plaintiff requests $2,100 in monetary sanctions against Gutierrez and his counsel of record, representing a $350 hourly rate. Based on Defendants’ counsel’s declaration regarding the efforts to locate Gutierrez, the Court declines to award sanctions to counsel. However, the Court finds that sanctions are warranted for Gutierrez, but the amount requested is excessive given the type of motion.  Therefore, the Court grants monetary sanctions in the amount of $700 (2 hours of attorney time).

CONCLUSION AND ORDER

Accordingly, Plaintiff’s motion to compel Defendant Hercules Shane Gutierrez’s deposition is GRANTED. Defendant Hercules Shane Gutierrez shall appear within 14 days’ notice of this order for a deposition.

The Court further grants Plaintiff’s request for monetary sanctions in the reduced amount of $700 against Gutierrez. Said monetary sanctions shall be paid to counsel for Plaintiff within 30 days of this order.

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