Judge Daniel M. Crowley, Case Number: 24STCV01765, Date: 2024-03-29 Tentative Ruling

Petitioner United Financial Casualty Company’s unopposed motion to compel the deposition of Respondent Jose Alfredo Bermero is granted. Respondent Jose Alfredo Bermero is ordered to appear for deposition and produce documents within 15 days of this ruling.

Petitioner United Financial Casualty Company’s request for sanctions against Respondent Jose Alfredo Bermero is granted in the reduced amount of $240.00, payable within 15 days.

Petitioner United Financial Casualty Company’s unopposed motion to compel the deposition of Respondent Andres Gonzalez is granted. Respondent Andres Gonzalez is ordered to appear for deposition and produce documents within 15 days of this ruling.

Petitioner United Financial Casualty Company’s request for sanctions against Respondent Andres Gonzalez is granted in the reduced amount of $240.00, payable within 15 days.

Petitioner United Financial Casualty Company (“UFCC”) (“Petitioner”) moves unopposed to compel the deposition of Respondent Jose Alfredo Bermero (“Bermero”) (“Respondent”). (Notice Motion Bermero, pgs. 1-2; C.C.P. §2025.450.) Petitioner requests sanctions against Bermero in the amount of $600.00. (Notice Motion Bermero, pg. 2; C.C.P. §§2023.010 et seq.)

Petitioner moves unopposed to compel the deposition of Respondent Andres Gonzalez (“Gonzalez”) (“Respondent”). (Notice Motion Gonzalez, pgs. 1-2; C.C.P. §2025.450.) Petitioner requests sanctions against Gonzalez in the amount of $600.00. (Notice Motion Gonzalez, pg. 2; C.C.P. §§2023.010 et seq.)

A motion to compel a deposition must be accompanied by a declaration stating facts showing “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (C.C.P. §§2016.040, 2025.480(b).)

Petitioner’s counsel declares that on November 10, 2023, she served a notice of deposition on Bermero’s counsel setting his deposition for December 20, 2023. (Decl. of Kahen ¶2, Exh. A.) Petitioner’s counsel declares that she received no return phone call or email and received no objection to the deposition. (Decl. of Kahen ¶5.) Petitioner’s counsel declares that on December 20, 2023, she moved forward with Bermero’s deposition and waited for Bermero from 10:00 am to 10:30 am, but neither Bermero nor his counsel arrived for the deposition and the court reporter prepared an Affidavit of Nonappearance. (Decl. of Kahen ¶6, Exh. D.) Petitioner’s counsel declares on January 5, 2024, she sent a meet and confer correspondence to Bermero’s counsel via email seeking his availability for a deposition by January 12, 2024, and did not receive a response, necessitating the filing of the instant motion. (Decl. of Kahen ¶7, Exh. E.) Petitioner’s counsel’s declaration does not indicate if she attempted to meet and confer with Bermero’s counsel by telephone. Petitioner’s counsel’s declaration does not substantially comply with the requirements of C.C.P. §2016.040. Regardless, the Court in its discretion will consider Petitioner’s motion.

On November 10, 2023, Petitioner’s counsel served a notice of deposition on Bermero’s counsel setting his deposition for December 20, 2023. (Decl. of Kahen ¶2.) On December 6, 2023, Petitioner’s counsel’s office reached out to Respondent’s counsel via e-mail to confirm the deposition but did not receive a response. (Decl. of Kahen ¶3.) On December 18, 2023, Petitioner’s counsel’s office sent another email to confirm the deposition and was again met with no response. (Decl. of Kahen ¶4.) Petitioner’s Counsel received no return phone call or email and received no objection to the deposition. (Decl. of Kahen ¶5.)

On December 20, 2023, Petitioner’s counsel moved forward with Bermero’s deposition and waited for Bermero to appear from 10:00 am to 10:30 am, but neither Respondent nor his counsel arrived for the deposition. (Decl. of Kahen ¶6). As such, Petitioner asked the court reporter for an Affidavit of Nonappearance. (Decl. of Kahen ¶6). On January 5, 2024, Petitioner’s Counsel sent a meet and confer correspondence to Bermero’s counsel via email seeking Bermero’s availability for his deposition by January 12, 2024. Petitioner’s counsel did not receive a response necessitating the filing of the instant motion. (Decl. of Kahen ¶7).

Petitioner filed the instant motion on March 5, 2024. As of the date of this hearing no opposition has been filed.

C.C.P. §2025.280(a) provides, in part, “[t]he service of deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action . . . to attend and to testify, as well as to produce any document or tangible thing for inspection and copying.” (C.C.P. §2025.280(a).)

(a) If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, 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 the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, . . . described in the deposition notice.

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document . . . 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 . . . described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

The Court grants Petitioner’s motion pursuant to C.C.P. §2025.450 and orders Bermero to appear for deposition within fifteen (15) days of this Court’s ruling.

Petitioner’s request for sanctions against Bermero is granted pursuant to C.C.P. §2025.450(g). Petitioner requests sanctions in the amount of $600.00. However, Petitioner’s request for sanctions includes two anticipated hours to review and opposition and draft a reply, which included attorneys’ fees for hours that are not reasonably incurred. Therefore, the Court calculates sanctions as follows:

Plaintiff’s request for sanctions against Bermero is granted in the reduced amount of $240.00.

Petitioner’s request for sanctions against Bermero is granted in the reduced amount of $240.00, payable within 15 days.

Petitioner’s counsel declares that on November 10, 2023, she served a notice of deposition on Gonzalez’s counsel setting his deposition for December 19, 2023. (Decl. of Kahen ¶2, Exh. A.) Petitioner’s counsel declares that she received no return phone call or email and received no objection to the deposition. (Decl. of Kahen ¶5.) Petitioner’s counsel declares that on December 19, 2023, she moved forward with Gonzalez’s deposition and waited for Gonzalez from 10:00 am to 10:30 am, but neither Gonzalez nor his counsel arrived for the deposition and the court reporter prepared an Affidavit of Nonappearance. (Decl. of Kahen ¶6, Exh. D.) Petitioner’s counsel declares on January 5, 2024, she sent a meet and confer correspondence to Gonzalez’s counsel via email seeking his availability for a deposition by January 12, 2024, and did not receive a response, necessitating the filing of the instant motion. (Decl. of Kahen ¶7, Exh. E.) Petitioner’s counsel’s declaration does not indicate if she attempted to meet and confer with Gonzalez’s counsel by telephone. Petitioner’s counsel’s declaration does not substantially comply with the requirements of C.C.P. §2016.040. Regardless, the Court in its discretion will consider Petitioner’s motion.

On November 10, 2023, Petitioner’s counsel served a notice of deposition on Gonzalez’s counsel setting his deposition for December 19, 2023. (Decl. of Kahen ¶2.) On December 6, 2023, Petitioner’s counsel’s office reached out to Respondent’s counsel via e-mail to confirm the deposition but did not receive a response. (Decl. of Kahen ¶3.) On December 18, 2023, Petitioner’s counsel’s office sent another email to confirm the deposition and was again met with no response. (Decl. of Kahen ¶4.) Petitioner’s Counsel received no return phone call or email and received no objection to the deposition. (Decl. of Kahen ¶5.)

On December 19, 2023, Petitioner’s counsel moved forward with Gonzalez’s deposition and waited for Gonzalez to appear from 10:00 am to 10:30 am, but neither Respondent nor his counsel arrived for the deposition. (Decl. of Kahen ¶6). As such, Petitioner asked the court reporter for an Affidavit of Nonappearance. (Decl. of Kahen ¶6). On January 5, 2024, Petitioner’s Counsel sent a meet and confer correspondence to Gonzalez’s counsel via email seeking Gonzalez’s availability for his deposition by January 12, 2024. Petitioner’s counsel did not receive a response necessitating the filing of the instant motion. (Decl. of Kahen ¶7).

Petitioner filed the instant motion on March 5, 2024. As of the date of this hearing no opposition has been filed.

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document . . . described in the deposition notice.

The Court grants Petitioner’s motion pursuant to C.C.P. §2025.450 and orders Gonzalez to appear for deposition within fifteen (15) days of this Court’s ruling.

Petitioner’s request for sanctions against Gonzalez is granted pursuant to C.C.P. §2025.450(g). Petitioner requests sanctions in the amount of $600.00. However, Petitioner’s request for sanctions includes two anticipated hours to review and opposition and draft a reply, which included attorneys’ fees for hours that are not reasonably incurred. Therefore, the Court calculates sanctions as follows:

Plaintiff’s request for sanctions against Gonzalez is granted in the reduced amount of $240.00.

Petitioner’s motion to compel Gonzalez to appear for deposition is granted. Gonzalez is to appear for deposition with 15 days of this ruling.

Petitioner’s request for sanctions against Gonzalez is granted in the reduced amount of $240.00, payable within 15 days.

Hon. Daniel M. Crowley

Judge of the Superior Court