Judge Christian R. Gullon, Case Number: 23PSCV00566, Date: 2024-05-01 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00566, Date: 2024-05-01 Tentative Ruling

Defendant David Hernandez's Notice Of Motion And Motion To Enforce Deposition Subpoena For Attendance At Deposition Of Third-Party Witness, Gloria Martinez Rodriguez; Request For An Award Of Monetary Sanctions Against Gloria Martinez Rodriguez In The Sum Of $1,185.00 is GRANTED; monetary sanctions are not imposed.

On February 27, 2023, Plaintiffs ZALEKA SHELET TURNER, CORA GORDON, and LAZHIYA VENEY (a minor) filed suit against Defendants FEDEX FREIGHT WEST INC. and DAVID HERNANDEZ for:

1. Negligence and

2. Negligence Per Se

On December 14, 2023, Plaintiffs named FEDEX GROUND PACKAGE SYSTEM, INC. as Doe 1.

On January 12, 2024, DEFENDANT FEDEX GROUND PACKAGE SYSTEM, INC. filed its answer.

On February 29, 2024, the court held an IDC.[1] The minute order states, in relevant part, “On the Court's own motion, the Informal Discovery Conference (IDC) scheduled for 02/29/2024 is continued to 05/01/2024 at 10:00 AM in Department O at Pomona Courthouse South. The Court and Counsel confer re: Defense Counsel's request to Depose Gloria Martinez Rodriguez. In light of the above and by Order of the Court, the matter is reserved as follows: The matter is reserved for May 1, 2024, at the Pomona Courthouse in Department O at 10:00 a.m. for a Hearing on Motion to Compel Deposition.”

On April 17, 2024, Plaintiffs’ Counsel Ardy Prinia filed a motion to be relieved as counsel as to Lazhiya Veney. (The hearing on this motion is set for 6/11/24.)

Code of Civil Procedure section 2025.010 states that any party may take the "oral deposition of any person" in a matter on issues "relevant to the subject matter involved in the pending action." For depositions "that command only the attendance and the testimony of the deponent.” Relatedly, CCP section 1987.1 allows a party to move the Court for an order compelling the attendance of a witness to a deposition if the witness fails to comply with a subpoena. The failure to comply with a subpoena may also be punishable by contempt pursuant to Code of Civil Procedure section 1991.1.

Defendant moves for an order directing compliance with the subpoena and compelling deponent's attendance at a deposition on a date to be determined at the hearing on this matter. More specifically, Deponent, Gloria Martinez Rodriguez (a witness to the car accident), failed to appear at the 1/16/2024 deposition. (Motion, Ex. B.)[2]

Here, as Deponent has failed to appear at lawfully issued subpoenas and she has not made objections otherwise, the court compels her appearance.[3]

As for sanctions, they are available for nonparties who “flout the discovery process.” (Temple Comm. Hosp. v. Sup. Ct. (Ramos) (1999) 20 Cal.4^th 464, 476-477) or who have failed to comply in bad (Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350-1351.) As the failure to attend could have been for a different reason (e.g., hesitation about participating in litigation), the court declines to issue monetary sanctions.

[1] According to the 2/27/24 IDC statement, Plaintiffs’ Counsel were unable to contact their clients such that responses to Defendant Hernandez’s discovery requests were untimely produced. Furthermore, Plaintiffs’ Counsel still does not have contact with Plaintiff Lezihaya; an investigator has been hired to locate her.

[2] The first deposition was scheduled for 10/19/2023, but Defense Counsel took that off calendar as he was ill. (Motion p. 50 of 52 of PDF.)

[3] Defendant has been communicating with Deponent’s daughter, Ms. Gonzalez, and has spoken with Ms. Gonzalez numerous times to try to accommodate Deponent. (Motion p. 50 of 52 of PDF.) During their 10/14/23 call, Ms. Gonzalez notified Defense Counsel’s secretary (Maria Aguayo) that Deponent did not want her deposition taken.