Judge: Audra Mori, Case: 21STCV20467, Date: 2023-02-06 Tentative Ruling

Case Number: 21STCV20467    Hearing Date: February 6, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Defendant Christopher Garcia (“Defendant”) moves to compel Plaintiff Gilbert Edenilson Guillen Chavez’s (“Plaintiff”) deposition.  Defendant asserts that he has noticed Plaintiff’s deposition for four separate dates, but Plaintiff has failed to appear for his deposition.  After Defendant noticed Plaintiff’s deposition for May 19, 2022, a date Plaintiff’s counsel indicated Plaintiff was available, Plaintiff failed to appear, and a certificate of non-appearance was taken.  Thereafter, Defendant noticed Plaintiff’s deposition for July 19, 2022, but after Plaintiff’s counsel informed Defendant that Plaintiff’s counsel was having difficulty contacting Plaintiff, the deposition was taken off calendar. 

CCP § 2025.450(a) provides, “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”  CCP § 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under §2025.410.

Here, Defendant avers that despite setting Plaintiff’s deposition multiple times, Plaintiff has not appeared for his deposition.  Defendant has attempted to meet and confer with Plaintiff regarding scheduling Plaintiff’s deposition, but Plaintiff has not cooperated with scheduling his deposition.   

In opposition,[1] Plaintiff admits that “it is true that both Plaintiff and his counsel have failed to appear for duly set and properly noticed deposition …”, (Opp. at p. 2:11-12), but Plaintiff’s counsel provides that the reason is that Plaintiff’s counsel is having difficulty contacting Plaintiff despite repeated efforts to do so.  Plaintiff’s counsel requests that no sanctions be imposed on Plaintiff or Plaintiff’s counsel given the circumstances. 

Because Plaintiff admits that Plaintiff has failed to appear for his properly noticed deposition, the motion to compel Plaintiff’s deposition granted.  (CCP § 2025.450(a).)  Plaintiff is ordered to appear for deposition at a date, time, and location to be noticed by Defendant.  Defendant must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service). 

To the extent Defendant is seeking to compel production of documents included in the deposition notice, (Mot. Exh. G), Defendant does not set forth good cause for the production of any documents.  (CCP § 2025.450(b)(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.”].)  Therefore, Defendant’s motion is denied as to the request for production of documents in the deposition notice. 

CCP § 2025.450(g)(1) requires the Court to impose sanctions unless it finds the deponent acted with substantial justification or there are circumstances that render imposition of sanctions unjust.  Defendant is awarded two hours for preparing the motion and 0.5 hours for appearing at the hearing all at the requested rate of $200 per hour, for a total attorney fees award of $500.  Further, Defendant is awarded the certificate of non-appearance fee of $487 for the May 19, 2022 deposition and the motion filing fee of $60 as costs.[2] 

Sanctions are sought and imposed against Plaintiff and Plaintiff’s attorney of record.  However, given Plaintiff’s counsel’s representations that Plaintiff has not responded to Plaintiff’s counsel numerous communication attempts, sanctions are imposed against Plaintiff only.  Plaintiff is ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $1,047.00, within twenty days. 

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 6^th day of February 2023