Judge: Colin Leis, Case: 20STCV43611, Date: 2023-08-24 Tentative Ruling

Case Number: 20STCV43611    Hearing Date: October 19, 2023    Dept: 74

Carlos Montes v. John Doe, et al.

Plaintiff Carlos Montes’ Motion to Compel Deposition of Defendant Jorge Rodriguez and Request for Sanctions.

            The court considered the moving papers. No opposition was timely filed. (Code Civ. Proc., § 1005, subd. (b) [“All papers opposing a motion […] shall be filed with the court and a copy served on each party at least nine court days […] before the hearing.”].)

BACKGROUND 

            This action arises from a dispute over alleged physical and defamatory attacks.

            On November 13, 2020, Plaintiff filed a complaint against Defendant.

            On March 18, 2021, Plaintiff noticed the deposition of Defendant to take place on May 3, 2021. On April 20, 2021, the parties agreed to a discovery extension and vacated the deposition date.

            Plaintiff noticed another deposition of Defendant set for May 19, 2021. Defendant objected on the grounds that the deposition was unilaterally noticed. On May 14, 2021, Defendant served Plaintiff with doctor’s notes stating he could not be deposed due to medical issues.

            On May 18, 2021, Plaintiff noticed another deposition of Defendant that would take place on August 30, 2021. On August 25, 2021, Defendant provided Plaintiff with another doctor’s note stating that Defendant would not be able to attend the deposition because he would be recovering from surgery. Defendant did not attend the deposition.

            On September 29, 2021, Plaintiff noticed another deposition of Defendant for October 28, 2021. On October 12, 2021, Defendant emailed Plaintiff that he could not attend the deposition due to the surgery. On October 19, 2021, Defendant objected to the deposition and claimed he would know by early November when he could attend a deposition.

            On October 21, 2021, Plaintiff noticed another deposition for November 9, 2021. On November 3, 2021, Defendant objected to the deposition. On November 9, 2021, Defendant provided a doctor’s note, according to which he could not sit for prolonged periods.

            On March 9, 2022, Plaintiff emailed Defendant about possible deposition dates. Defendant repeated that he could not sit for a deposition due to medical issues and provided two doctor’s notes on March 23, 2022.

            On May 5, 2022, Plaintiff noticed another deposition of Defendant for May 18, 2022. On May 16, 2022, Defendant objected to the deposition. Defendant did not appear for the deposition.

            On September 6, 2022, Plaintiff emailed Defendant about a potential informal discovery conference. On September 23, 2022, Defendant provided another doctor’s note stating he could not sit for prolonged periods. On October 20, 2022, Defendant provided another doctor’s note, which states he could not sit for periods longer than fifteen minutes. In an email, Plaintiff offered to accommodate Defendant’s medical limitations in the deposition. Defendant never responded.

            On November 1, 2022, Plaintiff called Defendant to informally resolve the matter. However, Plaintiff could not reach Defendant.

            On November 1, 2022, Plaintiff filed this motion for compel attendance and production at deposition and request for sanctions.

            On August 24, 2023, the court continued the hearing for this motion to compel to October 19, 2023, to allow Defendant to obtain representation.

LEGAL STANDARD

            “The service of a deposition notice . . . is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280, subd. (a).)

            “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, the party giving 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.” (Code Civ. Proc., § 2025.450, subd. (a).)

DISCUSSION

            In support of his motion, Plaintiff demonstrates he noticed one of many depositions of Defendant for August 30, 2021. (Contreras Decl., ¶ 7; Ex. 5.) Moreover, Plaintiff has indicated that Defendant responded with a doctor’s note and did not attend the deposition due to medical issues. (Contreras Decl., ¶¶ 8, 9; Ex. 6.) But there is no evidence Defendant served any objections to this deposition notice. Nor has Defendant provided any evidence of objections in a timely opposition. Plaintiff also contends that Defendant has not been cooperative in subsequent efforts to accommodate Defendant’s health condition. (Contreras Decl., ¶¶ 22-24.) Thus, the court will grant Plaintiff’s motion to compel the deposition.

            Additionally, the court finds that sanctions are appropriate. (Code Civ. Proc., § 2023.010, subd. (d) [“Misuses of the discovery process include […] [f]ailing to respond or to submit to an authorized method of discovery.”].) After delaying the deposition for nearly two years, Defendant has not cooperated with Plaintiff’s attempts to accommodate Defendant’s medical limitations. Furthermore, Defendant has not provided a timely opposition justifying his failure to appear for his deposition. The court finds Plaintiff’s counsel’s proposed hourly rate reasonable and notes he has substantiated his request for attorney fees with an hourly breakdown of work performed. (Contreras Decl., ¶ 25.) But given Defendant’s failure to file a timely opposition, the court will reduce the hours accordingly.

CONCLUSION 

Based on the foregoing, the court grants Plaintiff’s motion to compel attendance and production at deposition. The court orders Defendant to attend the deposition and produce documents within 10 days.

The court orders sanctions against Defendant in the amount of $2,370 ($550 x (3.2 hours (preparation of motion) + 1 hour (preparing for and attending hearing) + $60 (filing fee).) Defendant shall pay Plaintiff by November 19, 2023.

Plaintiff shall give notice.