Judge: Daniel M. Crowley, Case: 20STCV25568, Date: 2022-09-07 Tentative Ruling

Case Number: 20STCV25568    Hearing Date: September 7, 2022    Dept: 28

Plaintiff Eric Cottrell’s Motion to Compel Deposition of Defendant Caliber Bodyworks, Inc’s Person Most Knowledgeable; Plaintiff Eric Cottrell’s Motion to Compel Deposition of Defendant Caliber Holdings, LLC’s Person Most Knowledgeable

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

BACKGROUND

On July 7, 2020, Plaintiff Eric Cottrell (“Plaintiff”) filed this action against Defendants Jose Castro (“Castro”), Caliber Bodyworks, Inc. (“Bodyworks”) and RCB Equities South Bay, LLC (“RCB”) for negligence and premises liability. Plaintiff later amended the complaint to include Defendants Emcor Facilities Services, Inc. (“Emcor”) and Caliber Holdings, LLC (“Holdings”).  

On September 3, 2020, Bodyworks and Castro filed an answer and a Cross-Complaint against ROES 1 through 500 for implied contractual indemnity, total indemnity, equitable indemnity, negligence and contribution.  

On December 2, 2020, RCB filed its answer and a Cross-Complaint against Bodyworks for equitable indemnity, express indemnity, apportionment of fault, breach of contract and declaratory relief.  

On November 10, 2021, Plaintiff dismissed Emcor, without prejudice. Holdings filed its answer on January 28, 2022.  

On April 22, 2022, Holdings, Bodyworks, Castro and RCB filed a Cross-Complaint against the Terminix International (“Terminix”) for express contractual indemnity, equitable indemnity, contribution, breach of contract, declaratory relief (duty to defend) and declaratory relief (duty to indemnify).  

On May 10, 2022, Holdings, Bodyworks, Castro and RCB filed a Cross-Complaint against the Terminix International for express contractual indemnity, equitable indemnity, contribution, breach of contract, declaratory relief (duty to defend) and declaratory relief (duty to indemnify).  This appears to be an earlier copy of the previously submitted Cross-Complaint.

On February 2, 2022, Plaintiff filed a Motion to Compel Deposition of Bodyworks’ Person Most Knowledgeable to be heard on June 8, 2022. The Court continued the hearing on the motion to September 7, 2022.

On March 23, 2022, Plaintiff filed a Motion to Compel Deposition of Holdings’ Person Most Knowledgeable to be heard on May 26, 2022. The Court continued the hearing on the motion to September 7, 2022.

Trial is currently set for November 29, 2022.   

PARTY’S REQUESTS

Plaintiff requests the Court order Bodyworks and Caliber to produce their Persons Most Knowledgeable for a deposition and impose sanctions totaling $475.00 on each party.

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

Depositions

On December 9, 2021, Plaintiff served the PMK deposition notice on Bodyworks to occur on January 26, 2022. Plaintiff sent multiple emails to ensure that the dates requests were proper without receiving any responses prior to the filing of this motion. Bodyworks did not serve objections to this notice and Bodyworks’ PMK did not appear for the deposition. As such, the Court finds there is good cause to grant the motion.

On February 7, 2022, Plaintiff served the PMK deposition notice on Holdings to occur on March 11, 2022. Plaintiff sent multiple emails to ensure that the dates requests were proper without receiving any responses prior to the filing of this motion. Holdings did not serve objections to this notice and Holdings’ PMK did not appear for the deposition. As such, the Court finds there is good cause to grant the motion.

Sanctions

Plaintiff requests sanctions totaling $475.00 for each motion, based upon 1 hour of attorney’s work in drafting the motion. The Court finds this request reasonable and grants it in full.

CONCLUSION

Plaintiff Eric Cottrell’s Motion to Compel Deposition of Defendant Caliber Bodyworks, Inc’s Person Most Knowledgeable is GRANTED. Bodyworks is ordered to produce the PMK(s) for a deposition to occur within 30 days of the hearing on the motion or another mutually agreed upon date. The Court imposes sanctions on Bodyworks and Bodyworks’ counsel totaling $475.00, to be paid to Plaintiff within 30 days of the hearing on the motion.

Plaintiff Eric Cottrell’s Motion to Compel Deposition of Defendant Caliber Holdings, LLC’s Person Most Knowledgeable is GRANTED. Holdings is ordered to produce the PMK(s) for a deposition to occur within 30 days of the hearing on the motion or another mutually agreed upon date. The Court imposes sanctions on Holdings and Holdings’ counsel totaling $475.00, to be paid to Plaintiff within 30 days of the hearing on the 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.