Judge: Curtis A. Kin, Case: 22STCV16403, Date: 2023-02-21 Tentative Ruling
Case Number: 22STCV16403 Hearing Date: February 21, 2023 Dept: 72
MOTIONS TO COMPEL
FURTHER RESPONSES TO:
(1)
FORM INTERROGATORIES-EMPLOYMENT, SET ONE;
(2)
SPECIAL INTERROGATORIES, SET ONE; AND
(3)
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
Date: 2/21/23 (8:30 AM)
Case: Jacob Hernandez v. Pepe’s
Towing et al. (22STCV16403)
TENTATIVE RULING:
I.
MOTIONS TO COMPEL FURTHER RESPONSES TO: (1) FORM
INTERROGATORIES-EMPLOYMENT, SET ONE; (2) SPECIAL INTERROGATORIES, SET ONE; AND
(3) REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
Plaintiff Jacob Hernandez moves to compel responses from
defendant Pepe’s Inc. to Form Interrogatories-Employment, Set One; Special
Interrogatories, Set One; and Request for Production of Documents, Set One.
On August 23, 2022, plaintiff served the first sets of Form
Interrogatories-Employment, Special Interrogatories, and Request for Production
of Documents on defendant Pepe’s Inc. (Lyon Decl. ¶¶ 5-7 & Exs. 4-6.) The
deadline to serve responses to the discovery was September 27, 2022. (CCP §§
2030.260(a), 2031.260(a) [responses to be served 30 days after service]; CCP §
1010.6(a)(4)(B) [two court days added for email service].) Despite an effort to
meet and confer, no responses have been served. (Lyon Decl. ¶¶ 2-4, 10 &
Exs. 1-3.) Accordingly, all objections are waived. (CCP §§ 2030.290(a),
2031.300(a).)
The motions are GRANTED. Within fifteen (15) days hereof,
defendant Pepe’s Inc. is ordered to serve verified responses, without
objection, to Form Interrogatories-Employment, Set One; Special
Interrogatories, Set One; and Request for Production of Documents, Set One.
For failing to
comply with discovery obligations thereby forcing plaintiff to file these three
motions, the Court imposes monetary sanctions on defendant Pepe’s Inc. in the
total amount of $900.00, comprised of the reasonable, requested amount of
$300.00 for each motion. Monetary sanctions shall be paid to counsel for
plaintiff within thirty (30) days hereof.
II.
MOTION TO COMPEL DEPOSITIONS
Plaintiff Jacob Hernandez moves to compel the depositions of:
(1) David Celis, (2) Ed Durazzo, (3) Angie Estrella, (4) Jose Acosta, (5) Joshua
Acosta, (6) the Person Most Knowledgeable regarding the reasons for plaintiff’s
termination, and (7) the Person Most Knowledgeable regarding defendant Pepe’s
Inc.’s discrimination policies.
“If, after service of a deposition notice, a party to the
action or an officer, director, managing agent, or employee of a party, or a
person designated by an organization that is a party under Section 2025.230,
without having served a valid objection under Section 2025.410, fails to appear
for examination, or to proceed with it…the party giving the notice may move for
an order compelling the deponent’s attendance and testimony….” (CCP §
2025.450(a).) Here, other than with
respect to deponent Celis, plaintiff fails to show that the deponents failed to
appear for their scheduled depositions.
As for Celis, on August 23, 2022, plaintiff served a
deposition notice for Celis to appear for a remote deposition on October 17,
2022 at 9:00 a.m. (Lyon Decl. ¶ 8 & Ex. 7.) On the morning of August 23,
2022 at 9:10 a.m., defendant sent an email stating: “[I]f the deposition today
is of my witness, we are not prepared to go forward.” (Id. ¶ 2 & Ex.
1.) Plaintiff demonstrates that deponent Celis failed to proceed with a noticed
deposition and that plaintiff contacted Celis to inquire about the
nonappearance, as required by CCP § 2025.450(b)(2).
With respect to the other deponents, however, plaintiff
provides no evidence that examinations were scheduled for which the other
deponents did not appear. Plaintiff only states that the depositions were
previously set for October 17-19 and December 20-22, 2022. (Lyon Decl. ¶¶ 8-10
& Exs. 7, 8.) Plaintiff does not provide any evidence that the other
deponents failed to appear for deposition at their noticed dates and times.
For the foregoing reasons, the motion is GRANTED IN PART as
to David Celis and DENIED as to the other six deponents. David Celis is ordered
to appear for deposition via videoconferencing software on ___________________
at _________.
For failing to appear for deposition without substantial
justification, thereby forcing plaintiff to file this motion, the Court imposes
a monetary sanction against defendant Pepe’s Inc. in the reasonable and
requested amount of $300. Monetary sanctions shall be paid to counsel for
plaintiff within thirty (30) days hereof.
Lastly, the Court notes that plaintiff did not pay a
separate filing fee for each deponent that this motion concerns. The filing fee
required by Government Code § 70617(a)(4) concerning discovery motions applies
“separately to each motion or other paper filed,” “[r]egardless of whether each
motion or matter is heard at a single hearing or at separate hearings.” (Gov.
Code § 70617(f).) Because plaintiff seeks to compel seven depositions,
plaintiff was required to pay seven separate filing fees of $60, i.e.,
$420 in total. Plaintiff paid only one filing fee of $60. Because the motion is
granted as to only one deponent, the Court does not seek payment of the
outstanding $360. However, plaintiff is admonished to pay all required motion fees
in the future. Otherwise, motions for which no fee has been paid may be subject
to denial.