Judge: Daniel M. Crowley, Case: 21STCV27157, Date: 2023-01-27 Tentative Ruling

Case Number: 21STCV27157    Hearing Date: January 27, 2023    Dept: 28

Defendant Josue Ulysses Perez’s Motion to Compel Deposition of Hector Humberto LaraGamboa

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

BACKGROUND

On July 23, 2021, Plaintiff Hector Humberto LaraGamboa (“Plaintiff”) filed this action against Defendant Josue Ulysses Perez (“Defendant”) for negligence.

On March 11, 2022, Defendant filed an answer.

On December 22, 2022, Defendant filed a Motion to Compel Plaintiff’s Deposition to be heard on January 27, 2023. On January 13, 2023, Plaintiff filed an opposition. On January 20, 2023, Defendant filed a reply.

Trial is currently scheduled for October 27, 2023.

PARTY’S REQUESTS

Defendant requests the Court compel Plaintiff to appear for his deposition on February 8, 2023, at 10:00 a.m. over Zoom. Defendant also requests $381.99 in sanctions be imposed on Plaintiff.

Plaintiff requests the Court not impose sanctions and instead schedule his deposition for February 10, 2023.

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

Defendant originally set Plaintiff’s deposition for June 10, 2022. Parties continued the deposition to August 25, 2022, due to Plaintiff’s unavailability—Plaintiff later filed an objection on the basis of unavailability to the new date. Parties met and conferred and chose a new date of October 28, 2022. Plaintiff later indicated he was no longer available, and so Defendant continued the deposition to November 21, 2022. Parties agreed to continue trial so that Defendant could schedule Plaintiff’s deposition for after this date but have yet to agree on a deposition date.

Plaintiff argues that counsel has been attempted to schedule Plaintiff’s deposition, but it has been delayed due partially to communication issues with Plaintiff and partially due to Plaintiff’s work schedule. Plaintiff has offered multiple days in December, January and February in an attempt to schedule said deposition.

Defendant’s reply states that Defendant provided at least 5 dates in January prior to hearing on the motion. Plaintiff did not accept any of these dates.

While the Court appreciates that Plaintiff has a certain work schedule, Plaintiff must make himself available for the discovery process. Sporadic communication and limited availability, especially given the coordination for availability between counsel as well, is not conducive to discovery. The Court grants the motion, ordering Plaintiff to appear for a video deposition within 30 days of the hearing on the motion. Parties can determine what date works best within that period.

The Court finds that Plaintiff’s delay due to lack of communication, and the delay in informing Defendant that Plaintiff was only available on Fridays is grounds for sanctions. Defendant spent approximately 6 months attempting to schedule Plaintiff’s deposition without being given proper dates for said deposition.

Defendant requests sanctions totaling $381.99, based on 2 hours of attorney’s work at a rate of $160.17 per hour and 1 $61.65 filling fee. The Court finds the request reasonable and grants it in full.

CONCLUSION

Defendant Josue Ulysses Perez’s Motion to Compel Deposition of Hector Humberto LaraGamboa is GRANTED. Plaintiff is ordered to appear for a video deposition within 30 days of the hearing on the motion.

Defendant Josue Ulysses Perez’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay Defendant $381.99 in sanctions 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.