Judge: Armen Tamzarian, Case: 21STCV33234, Date: 2023-09-05 Tentative Ruling

Case Number: 21STCV33234    Hearing Date: September 5, 2023    Dept: 52

(1) Defendant Alan Gibson’s Motion to Compel Responses to Special Interrogatories from Plaintiff Christopher Silva, and (2) Defendant Ken Atchity’s Motion to Compel Plaintiff Christopher Silva to Appear for Deposition and Produce Documents

(1) Defendant Alan Gibson’s Motion to Compel Responses to Special Interrogatories

            Defendant Alan Gibson moves to compel plaintiff Christopher Silva to serve responses to special interrogatories, set one.  When a party fails to timely respond to interrogatories, the requesting party may move for an order compelling responses.  (CCP § 2030.290(b).)  Failure to timely respond waives any objections.  (CCP § 2030.290(a).)

Gibson served special interrogatories, set one, on plaintiff on January 4, 2023.  (Rosenthal Decl., ¶ 2, Ex. A.)  Plaintiff had not served responses as of July 27, when Gibson filed this motion.  (Id., ¶ 3.)  Plaintiff did not timely respond to the interrogatories.  Gibson is therefore entitled to an order compelling plaintiff to serve verified responses to them without objections.

Gibson moves for $1,669 in sanctions against plaintiff and his counsel.  Failing to respond to an authorized method of discovery is a misuse of the discovery process subject to monetary sanctions.  (CCP § 2023.010(d).)  Plaintiff did not respond to authorized discovery.  The court finds plaintiff did not act with substantial justification and sanctions are just under the circumstances. 

Disposition

Defendant Alan Gibson’s motion to compel plaintiff Christopher Silva to respond to special interrogatories is granted.  Plaintiff Christopher Silva is ordered to serve verified responses to special interrogatories, set one, without objections within 10 days.

 Plaintiff Christopher Silva and his counsel of record, Paul S. Marks, are ordered to pay defendant Alan Gibson $1,669 in monetary sanctions within 10 days.  Plaintiff and his counsel shall be jointly liable for the sanctions.

(2) Defendant Ken Atchity’s Motion to Compel Plaintiff Christopher Silva to Appear for Deposition and Produce Documents

Defendant Ken Atchity moves to compel plaintiff Christopher Silva to appear for deposition and produce documents, or in the alternative to preclude plaintiff from testifying at trial.

Order Compelling Testimony and Production of Documents

            Atchity is entitled to an order compelling plaintiff to appear and testify at deposition and to produce the documents requested in his notice of deposition.  One may move to compel the deposition of a party who fails to appear at deposition or fails to produce requested documents “without having served a valid objection under Section 2025.410.”  (CCP § 2025.450(a).) 

            Atchity initially served notice of plaintiff’s deposition, including 16 requests for production of documents, on plaintiff on March 7, 2023.  (Rosenthal Decl., ¶ 5, Ex. A.)  After correspondence between counsel (id., ¶¶ 6-16), Silva’s deposition was ultimately rescheduled for July 12 (id., ¶ 17).  On July 11, plaintiff’s counsel told defendant’s counsel “that Silva would not be appearing for his deposition.”  (Id., ¶ 18.)  Plaintiff failed to appear at deposition and failed to produce the requested documents.  He did not make a valid objection under Code of Civil Procedure section 2025.410. 

Precluding Plaintiff from Testifying

            An order precluding a party from testifying is an evidence sanction, which generally requires that the party “fail[ed] to obey an order compelling attendance, testimony, and production” of documents at deposition.  (CCP § 2025.450(h).)  Plaintiff has not disobeyed any order compelling him to testify or produce documents at deposition.  The court had not made such an order until now.

Monetary Sanctions

            Atchity moves for $2,469 in sanctions against plaintiff Christopher Silva.  “If a motion” to compel deposition “is granted, the court shall impose a monetary sanction …  in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (CCP § 2025.450(g)(1).)  The court is granting Atchity’s motion to compel deposition.  Plaintiff did not act with substantial justification and sanctions are just under the circumstances. 

Disposition

            Defendant Ken Atchity’s motion to compel plaintiff to appear for deposition and produce documents is granted.  Plaintiff Christopher Silva is ordered to appear and testify at his deposition and produce all requested documents within 10 days.  Plaintiff Christopher Silva is ordered to pay defendant Ken Atchity $2,469 in monetary sanctions within 10 days.