Judge Daniel M. Crowley, Case 21STCV03569 2022-08-16 Tentative Ruling

Judge: Daniel M. Crowley, Case: 21STCV03569, Date: 2022-08-16 Tentative Ruling

Case Number: 21STCV03569 Hearing Date: August 16, 2022 Dept: 28

Defendants Akshay Patil, Turo Inc., Jie Liang and Dewei Zhou’s Motion to Compel Deposition of Plaintiff Ashlie Marquise Mays

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

BACKGROUND

On January 29, 2021, Plaintiff Ashlie Marquise Mays (“Plaintiff”) filed this action against Defendants Akshay Patil (“Patil”), Turo Inc. (“Turo”), Jie Liang (“Liang”) and Dewei Zhou (“Zhou”) for motor vehicle negligence, general negligence, negligence per se and negligent entrustment.

On April 20, 2021, Defendants filed an answer.

On February 14, 2022, Defendants filed a Motion to Compel Plaintiff’ Ashlie Marquise Mays’s Deposition to be heard on August 16, 2022. Plaintiff filed an opposition on July 29, 2022. On August 1, 2022, Defendants filed a reply.

Trial is currently scheduled for April 20, 2023.

PARTY’S REQUESTS

Defendants request the Court compel Plaintiff to appear for her deposition. Defendants also requests Plaintiff pay $1,276.00 in sanctions.

Plaintiff’s counsel requests the Court continue the hearing on this motion, or, in the alternative, deny the motion and request for sanctions.

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

Defendants have properly noticed 4 depositions of Plaintiff, none of which Plaintiff has appeared for. The first, October 26, Defendant’s rescheduled to November 22, 2021, when Plaintiff failed to provide additional dates. Plaintiff’s counsel advised he had told his client the deposition was off calendar and would not be appearing. Plaintiff did not provide any other dates, and thus Defendants noticed another deposition for December 29, 2021. Plaintiff’s counsel stated the deposition would need to be continued due to a COVID strain going through Plaintiff’s counsel’s office. Defendants noticed Plaintiff’s deposition for February 2, 2022, after Plaintiff again failed to provide dates. On February 1, 2022, Plaintiff’s counsel stated they would “just reschedule it;” Defendants advise they would take a certificate of non-appearance due to the routine lack of appearance. Plaintiff’s counsel promised to provide a new date but have yet to do so at the time of filing this motion. In the months between filling and the hearing, parties scheduled 2 more depositions, neither of which actually occurred.

Plaintiff’s counsel requests the Court continue the motion on the basis that there has been a complete breakdown in the attorney-client relationship in the last few months. The Court does not find this to a compelling reason to deny or continue the motion. Defendants are entitled to take Plaintiff’s deposition. A breakdown between Plaintiff and Plaintiff’s counsel does not excuse Plaintiff’s lack of appearance, especially given the fact that counsel has been on notice about this issue since October of 2021 and did not file the Motion to be Relieved as Counsel until July of 2022. Every non-appearance occurred prior to the filing of the motion to be relieved. Sanctions will be imposed on both Plaintiff and Plaintiff’s counsel.

Sanctions

Defendants are entitled to sanctions due to misuse of the discovery process. Defendants request sanctions totaling $1,276.00, based upon 6 hours of attorney’s work at a rate of $136.00 per hour, one $400.00 certificate of non-appearance and one $60.00 filling fee. 3 hours were spent preparing the motion, 2 hours were spent reviewing the opposition, and 1 hour will be spent attending the hearing. The Court finds this request reasonable and grants it in full.

CONCLUSION

Defendants Akshay Patil, Turo Inc., Jie Liang and Dewei Zhou’s Motion to Compel Deposition of Plaintiff Ashlie Marquise Mays is GRANTED. Plaintiff is ordered to appear for a mutually agreed upon deposition within 30 days of the hearing on this motion.

Defendants Akshay Patil, Turo Inc., Jie Liang and Dewei Zhou’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay Defendants $1,276.00 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.