Judge: Cherol J. Nellon, Case: 22STCV03598, Date: 2023-05-16 Tentative Ruling

Case Number: 22STCV03598    Hearing Date: May 16, 2023    Dept: 28

Defendant County of Los Angeles’s Motion to Compel Deposition of Plaintiff Rigoberto O. Jimenez

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On January 31, 2022, Plaintiff Rigoberto O. Jimenez (“Plaintiff”) filed this action against Defendant County of Los Angeles (“Defendant”) for negligence and premises liability.

On March 25, 2022, Defendant filed an answer.

On February 8, 2023, Defendant filed a Motion to Compel Plaintiff’s Deposition to be heard on April 26, 2023. The Court continued the hearing on the motion to May 16, 2023. On April 11, 2023, Plaintiff filed an opposition. On April 19, 2023, Defendant filed a reply.

Trial is currently scheduled for July 31, 2023.

PARTY’S REQUESTS

Defendant requests the Court compel Plaintiff to appear for a deposition within 14 days of the hearing on the motion. Defendant also requests the Court impose $3,885.00 in sanctions.

Plaintiff requests the Court deny the motion and issue sanctions totaling $2,100.00 against Defendant.

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

Defendant noticed Plaintiff’s deposition for the mutually agreed upon date of January 20, 2023. Parties confirmed the date on January 17 and January 19, 2023, by arranging for an interpreter and requesting the Zoom link. Defendant provided the Zoom link at 1:40 p.m. Plaintiff failed to appear for the deposition, without providing any notice of Plaintiff’s non-appearance prior to the date. As of the time of filing this motion, Plaintiff had not provided a reason for Plaintiff’s non-appearance.

Plaintiff alleges that Plaintiff was ready for the deposition but did not join because they were awaiting the Zoom link for the deposition. Plaintiff’s counsel states he called Defendant’s

counsel multiple times but was unable to speak with counsel. An hour after the deposition was supposed to begin, counsel excused Plaintiff as they had not received a phone call or email.

Plaintiff claims that Plaintiff never actually provided the Zoom link. Plaintiff cites to Defendant’s Ex. D, which is an e-mail containing the Zoom link, directed at Plaintiff’s counsel. Plaintiff states that while the names of Plaintiff’s counsel are on the email, their emails are not listed, failing to meet the requirements for electronic service. The Court disagrees. Ex. D is clearly responding to Plaintiff’s counsel’s email, which provides the applicable email addresses for relevant parties. The return email simply lists the individuals by their “contact name,” instead of by e-mail address. By Plaintiff’s logic, Plaintiff’s e-mail chain requesting the deposition link, Ex. K, would not constitute evidence as it utilizes the same exact contact names as Defendant’s exhibit.

Plaintiff’s counsel agreed to this deposition. The evidence suggests that Defendant provided the link to the deposition. Plaintiff’s counsel was obliged to follow-up with counsel to ensure they obtained the link. At the very least, Plaintiff’s counsel should have immediately contacted Defendant explaining the reason for the non-appearance. Plaintiff’s counsel states he called the law offices—there is no mention if Plaintiff’s counsel attempted to call counsel directly. That information would have been accessible, as at least one Defense attorney has their individual number written on their email signature. Ex. D. Plaintiff’s counsel later told Defense counsel he only had a record of a single call made to Defendant’s offices, approximately 40 minutes past the start time of the deposition. Defendant has no record of any calls from the provided number. Even so, if phone calls were not connecting, Plaintiff’s counsel clearly had access to Defense counsel’s e-mail, and could have notified them electronically. Approximately 3 weeks passed from the time of the noticed deposition to the time of filing this motion—Plaintiff did not attempt to contact Defendant at any time to reschedule the deposition. The Court finds cause and grants the motion.

Defendant is entitled to sanctions against Plaintiff’s counsel; the Court will not impose sanctions against Plaintiff as, according to both Plaintiff and Plaintiff’s counsel, Plaintiff properly appeared for his deposition at counsel’s office. Defendant request sanctions totaling $3,885.00, based on 9.4 hours of attorney’s work, at a rate of $300.00 per hour, 1 $430.00 certificate of non-appearance fee and 1 $635.00 language interpreter fee. Attorney’s work consists of 0.4 hours attending the deposition, 4.5 hours drafting the motion, 3 hours reviewing any opposition, and 1.5 hours attending the hearing. The Court awards sanctions of $2,270.00,

based on 4 hours of attorney’s work and the applicable fees associated with Plaintiff’s non-appearance.

CONCLUSION

Defendant County of Los Angeles’s Motion to Compel Deposition of Plaintiff Rigoberto O. Jimenez is GRANTED. Plaintiff is ordered to appear for a deposition within 30 days of the hearing on the motion.

Defendant County of Los Angeles’s Request for Sanctions is GRANTED. Plaintiff’s counsel is ordered to pay Defendant $2,270.00 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.