Judge Audra Mori, Case BC712172 2022-10-31 Tentative Ruling

On June 29, 2018, Plaintiff, Jasmine Marie Acosta (“Plaintiff”) filed this action against Defendants, Dann Frank Sarnoski (“Defendant”), et al. for damages arising out of an automobile accident. Trial in this matter is currently set for December 23, 2022.

At this time, Defendant moves to compel nonparties Hagop Frias (“Hagop”) and Irene Frias (“Irene”) to comply with the deposition subpoena for personal appearance served on each. The motions to compel compliance against each Hagop and Irene are unopposed.

In addition, Defendant moves to continue the current trial date to April 28, 2023, or another date based on the Court’s availability. No opposition has been received to the motion to continue trial.

Defendant asserts that Hagop and Irene Frias are Plaintiff’s children, which Plaintiff identified as damages witnesses. Defendant further provides that Plaintiff’s counsel acknowledged in writing that counsel had authority to accept service of the deposition notices for Hagop and Irene Frias and would facilitate the depositions. Defendant states that he noticed Hagop’s and Irene’s depositions for May 19, 2022, but Hagop and Irene failed to appear for the depositions. Defendant then noticed Hagop’s and Irene’s depositions for August 12, 2022, but Hagop and Irene again failed to appear. (Mots. to Compel Compliance Exhs. E.)

The service of a deposition notice, pursuant to CCP § 2025.240, is effective to require any party deponent to attend, testify, and produce materials for inspection at a deposition. (CCP § 2025.280(a).) To require the attendance and testimony of a non-party deponent, as well as his or her production of any document or tangible thing for inspection and copying, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant CCP § 2020.010, et seq. (CCP §§ 2020.010(b), 2025.280(b); See also Sears, Roebuck & Co. v. National Union Fire Insurance Company of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by CCP §§ 2020.010, et seq., and is primarily carried out by way of subpoena].)

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (CCP § 2025.480(a).) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (CCP § 2025.480(i).)

In this case, Defendant argues that Plaintiff’s counsel identified Hagop and Irene as damages witnesses. Defendant contends that Plaintiff’s counsel stated he was authorized to accept service of the deposition subpoenas for Hagop and Irene, and although the subpoenas were served on Plaintiff’s counsel, Hagop and Irene have not appeared for their noticed depositions or produced the requested documents. Defendant filed proof of service showing Hagop and Irene were each personally served with the moving papers, and the motions to compel compliance with the subpoenas are unopposed. Furthermore, there is no evidence that any objections were filed to the subpoenas, nor was a motion to quash filed.

The motion to compel compliance with the subpoenas served on Hagop and Irene Frias are granted. Hagop and Frias are each ordered to appear at a date, time, and location to be noticed by Defendant and to produce the requested records. Defendant must give at least ten days’ notice of the depositions (notice extended per Code if by other than personal service). Pursuant to CCP § 2025.310, at the election of either the deponents- Hagop or Irene- Plaintiff or Defendants, the deposition must be completed remotely.

Defendant additionally seeks sanctions for each motion against Plaintiff’s counsel because Plaintiff’s counsel represented he would facilitate the depositions then ignored defense counsel’s attempts to set the depositions. Regarding a motion to compel compliance with a subpoena, CCP § 1987.2(b)(1) provides that the court “may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”

Defendant is awarded one hour for each motion [two hours] and one hour for appearing at the hearing on this matter- but is awarded this time only once- all at the requested rate of $185.00 per hour, for a total attorney fees award of $555.00. Sanctions are sought and imposed against Plaintiff’s counsel only; Plaintiff’s counsel is ordered to pay sanctions to Defendant, through counsel of record, in the total amount of $555.00 within twenty (20) days.

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (CRC Rule 3.1332(c).) The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (CRC Rule 3.1332(c).) The Court may look to the following factors in determining whether a trial continuance is warranted: (1) proximity of the trial date; (2) whether there was any previous continuance of trial due to any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; and (6) whether trial counsel is engaged in another trial. (See generally, CRC Rule 3.1332(d)(1)-(11).) Additional factors for the Court to consider include: a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; whether all parties have stipulated to a continuance; and any other fact or circumstance relevant to the fair determination of the motion or application. (CRC Rule 3.1332(c), (d).)

Here, Defendant contends there is good cause to continue the trial date because Defendant has been unable to obtain essential testimony, documents, and other evidence despite diligent efforts, and because Defendant anticipates the additional time will be sufficient to allow the parties to finalize any remaining discovery and take part in meaningful settlement discussions. Defendant argues that Plaintiff has failed to cooperate with Defendant, and that Defendant currently has nine motions to compel discovery scheduled as a result. Further, seven of the motions are scheduled to be heard after the current trial date. The Court notes that this matter is now over four years old, and that there have been multiple prior continuances in this matter. However, given Defendant’s inability to have multiple discovery motions heard prior to the current trial date, there is good cause to continue the trial date. As the Standing Order Re: Personal Injury Procedures at the Spring Street Courthouse provides, Defendant properly seeks to continue trial instead of seeking to specially set the hearing date for the motions. Moreover, Plaintiff does not oppose the motion to continue trial.

Defendant’s motion to continue trial is granted. The December 23, 2022 trial date is continued to June 2, 2023, at 8:30 a.m. in Department 31 of the Spring Street Courthouse. The December 9, 2023 Final Status Conference is continued to _______________ at 10:00 a.m. in Department 31. All discovery and expert cutoff dates are continued to reflect the new trial date. Given the age of the case, the parties are put on express notice that there will be no further continuances. The parties must plan all motion, discovery, and alternative dispute resolution accordingly.

Hon. Audra Mori

Judge of the Superior Court