Judge: Daniel M. Crowley, Case: 19STCV33168, Date: 2022-10-25 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org.  Include the word "SUBMITS" in all caps and the Case Number in the Subject line.  In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.     If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.
                          
            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court.   
 
            If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.  

Case Number: 19STCV33168    Hearing Date: October 25, 2022    Dept: 28

Motion for Order Compelling Plaintiff Ceasar Pallares’ Attend, Testify, and Produce Documents at Deposition

Having considered the moving papers, the Court rules as follows.  No opposing papers were filed.

BACKGROUND

            On November 18, 2019, Ceasar Pallares (Plaintiff) filed this action against Defendants Maria Salgado, Jade Moreno, Jhovany Rojas, and Enterprise Truck Rental, Inc. (Defendants) for personal injuries sustained in a September 19, 2017, automobile accident.  Defendants move to compel Plaintiff’s deposition.

            On July 7, 2021, Defendants served Plaintiff with a deposition notice for September 17, 2021, which also included a document production request.  (Paz Decl. ¶ 2; Exh. A.)  On February 4, 2022, Defendants caused to serve a Notice of Taking Deposition, re-setting the deposition for April 6, 2022, because the then handling attorney left the firm and the case was being reassigned to new counsel.  Plaintiff failed to appear on April 6, 2022, for the deposition.  Defense counsel sent a meet and confer correspondence to Plaintiff’s counsel to discuss the non-appearance and requested Plaintiff’s counsel reschedule the deposition within five days, but Plaintiff’s counsel did not respond.  (Paz Decl. ¶¶ 3-5; Exhs. B-C.). Defendants rescheduled the deposition to May 12, 2022, which was taken off due to the parties’ unavailability.  Defendants rescheduled the deposition to June 3, 2022, having no received no response by May 11, 2022.  Plaintiff failed to appear for deposition.  (Paz Decl. ¶ 17; Exhs. M-N.)  

            Trial is set for December 7, 2022.

PARTY’S REQUESTS

Defendants request an order compelling Plaintiff to attend, testify, and produce documents at deposition on November 4, 2022, at 10:00 am via remote video conference.

LEGAL STANDARD

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.  (Code Civ. Proc., § 2025.010.)  A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.  (Code Civ. Proc., § 2025.280, subd. (a).) 

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled.  (Code Civ. Proc., § 2025.410, subd. (a).)  In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice.  (Code Civ. Proc., § 2025.410, subd. (c).) 

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450, subd. (a).) 

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Code Civ. Proc., § 2025.450, subd. (g)(1).) 

DISCUSSION

Motion to Compel

Plaintiff filed no opposition to this Motion and it is undisputed Plaintiff has failed to appear for his properly-noticed deposition and has refused to provide any available dates for her deposition.   

Accordingly, Defendants’ Motion to compel is GRANTED.  Plaintiff is ordered to appear for his deposition on the date requested by Defendants.

Sanctions

Defendants’ request for monetary sanctions is GRANTED and sanctions are imposed against Plaintiff and Plaintiff’s counsel, jointly and severally, in Defendants’ requested amount of $1,549.53 which includes four hours to meet and confer, review the motion and declaration, and appear at the subject motion hearing at Defense counsel’s hourly rate of $160.17 plus four hours of legal assistant time to reserve the hearing and draft the motion at $75 per hour, and the $60.00 filing fee, to be paid within twenty (20) days of the date of this Order. 

CONCLUSION

            Defendants’ request for Motion to Compel and Sanctions is GRANTED.

Defendants are ordered to give notice of this ruling.

Defendants are 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.