Judge: Daniel M. Crowley, Case: 20STCV14098, Date: 2022-10-27 Tentative Ruling

Case Number: 20STCV14098    Hearing Date: October 27, 2022    Dept: 28

Plaintiff Metala Tuivaiti and Tautalaga Tuivaiti’s Motion to Compel Deposition of Defendant Ruben Miranda, III

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

BACKGROUND

On April 9, 2020, Plaintiff Metala Tuivaiti (“Metala”) filed this action against Defendant Ruben Miranda, III (“Miranda”) for motor vehicle negligence, general negligence and intentional tort.

On May 27, 2020, Plaintiff filed the FAC, adding Plaintiff Tautalaga Tuivaiti (“Tautalaga”) and Defendants Progressive Group of Insurance (“Progressive”) and United Financial Casualty Company (“United”), as well as causes of action for declaratory relief.

On August 20, 2020, the Court dismissed United and Progressive, with prejudice, pursuant to Plaintiff’s request.

On July 29, 2021, Plaintiffs filed the SAC, adding United and Progressive again.

On October 13, 2021, Plaintiffs filed the TAC, removing United and Progressive.

On November 16, 2021, Defendants filed an answer.

On September 29, 2022, Plaintiffs filed Motions to Compel the Depositions of Defendant Ruben Miranda, III to be heard on October 27, 2022. On October 14, 2022, Defendant filed an opposition.

Trial is scheduled for June 5, 2023.  

PARTY’S REQUESTS

Plaintiffs request the Court order Defendant appear for his depositions, and that the Court impose sanctions totaling $711.65.

Defendant requests the Court deny the motion.

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

Deposition

Plaintiffs noticed Defendant’s deposition for February 15, 2022. Defendant indicated that counsel was unavailable for this date. Plaintiffs re-noticed the deposition for March 30, 2022, which Defendant had provided as an available date. Defendant also canceled this deposition. Plaintiffs have made repeated attempts to obtain deposition dates, but Defendant’s counsel has stated they don’t have any dates.

Defendant argues that they provided the March 30, 2022, date prior to confirming the date with their client; they claim that Plaintiff was the party who took it off calendar after Defendant “merely advised Plaintiffs’ counsel of its unsuccessful attempts to confirm Defendant would appear.” Defendant’s counsel states that they have not attempted to delay the deposition but have been unable to provide dates because they do not have reliable contact with Defendant.

Counsel’s lack of ability to contact Defendant does not overwrite Plaintiffs’ right to conduct discovery. Plaintiffs have made a diligent effort to schedule Defendant’s deposition. The Court grants the motion.

Sanctions

Plaintiffs are entitled to sanctions due to misuse of the discovery process. Plaintiffs request sanctions of $711.65, based upon 2 hours of attorney’s work at a rate of $325.00 per hour and one $61.65 filling fee. The Court finds this request reasonable and grants it in full.

CONCLUSION

Plaintiff Metala Tuivaiti and Tautalaga Tuivaiti’s Motion to Compel Deposition of Defendant Ruben Miranda, III is GRANTED. Defendant is ordered to appear for a mutually agreed upon deposition within 30 days of the hearing on this motion.

Plaintiff Metala Tuivaiti and Tautalaga Tuivaiti’s Request for Sanctions is GRANTED. Defendant is ordered to pay Plaintiffs $711.65 in sanctions within 30 days of the hearing on this 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.