Judge: Cherol J. Nellon, Case: 20STCV28198, Date: 2023-04-19 Tentative Ruling

Case Number: 20STCV28198    Hearing Date: April 19, 2023    Dept: 28

Defendants Mario Salazar and Harbor Dispatch Transport, Inc.’s Motion to Compel Deposition of Plaintiff Chun Ho Tang

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On July 27, 2020, Plaintiff Chun Ho Tang (“Plaintiff”) filed this action against Defendants Mario Salazar (“Salazar”) and Harbor Dispatch Transport, Inc. (“HDT”) for negligence.

On November 4, 2021, Defendants filed an answer.

On March 27, 2023, Defendants filed a Motion to Compel Plaintiff’s Deposition to be heard on April 19, 2023.

Trial is currently scheduled for January 30, 2024.

PARTY’S REQUESTS

Defendants request the Court compel Plaintiff to appear for a deposition within 10 days of the hearing on the motion. Defendants also request the Court impose $2,475.00 in sanctions.

LEGAL STANDARD

Code of Civil Procedure § 2025.450 allows the Court to compel a party’s appearance and to produce documents.

“If, after service of a deposition notice, a party to the action… without having served a valid objection… fails to appear for examination, or to proceed with it, or to produce for inspection any document 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 or tangible thing described in the deposition notice.” A motion under subdivision (a) 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 or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP § 2025.450 provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition 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.

Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.

DISCUSSION

Defendants noticed Plaintiff’s deposition 4 separate times since December 2021. Plaintiff showed up for a deposition on December 6, 2022, but the deposition had to be continued due to technical issues and the length, which Plaintiff’s counsel did not account for. Parties continued the deposition to December 18, 2022, pursuant to an agreement between parties. The night before, Plaintiff’s counsel canceled the deposition and stated they would provide new dates. Parties rescheduled the deposition for January 12, 2023; Plaintiff later requested they reschedule the deposition but failed to provide any alternative date. Counsel then attempted to set another deposition and received no communication until Plaintiff objected to the deposition only two days prior to the date. Plaintiff provided less than 24 hours' notice in canceling the most recent deposition. Since then, Plaintiff has not provided any dates of availability.

Defendants have made diligent attempts to conduct Plaintiff’s deposition, despite Plaintiff’s counsel’s failure to communicate. Plaintiff failed to appear for or provide alternative dates for said deposition. The Court finds good cause and grants the motion.

Under CCP § 2025.450, sanctions are mandatory when granting a motion to compel a party’s deposition. Defendants request $2,475.00 in sanctions, based upon 9 hours of attorney’s work at a rate of $225.00 per hour, and cancelation costs. The declaration does not explicitly state the cancelation costs, and thus the Court will not include it in the sanctions request. The total hours provided also contradicts with the breakdown of attorney’s work. Attorney’s work is based on 7 hours drafting, 2 hours replying to any opposition, and 2 hours appearing for the hearing. The Court notes the motion is unopposed. The Court awards $1,000.00 in sanctions, based upon 4 hours of attorney’s work.

CONCLUSION

Defendants Mario Salazar and Harbor Dispatch Transport, Inc.’s Motion to Compel Deposition of Plaintiff Chun Ho Tang is GRANTED. Plaintiff is ordered to appear for a deposition within 30 days of the hearing on the motion.

Defendants Mario Salazar and Harbor Dispatch Transport, Inc.’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay Defendants $1,000.00 in sanctions within 30 days of the hearing on the motion.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.