Judge: Daniel M. Crowley, Case: BC682558, Date: 2022-09-20 Tentative Ruling

Case Number: BC682558    Hearing Date: September 20, 2022    Dept: 28

Defendant Rajeshkumar Patel dba Poolside Inn Motel’s Motion to Compel Deposition of Plaintiff Todd Johnson

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

BACKGROUND

On November 6, 2017, Plaintiff Todd Johnson (“Plaintiff”) filed this action against Defendants Rajeshkumar Patel dba Poolside Inn Motel (“Poolside”) and Roger Patel (“Patel”) for battery, negligence, intentional infliction of emotional distress, fraudulent concealment, breach of contract, private nuisance and public nuisance.

On December 3, 2020, Plaintiff filed a FAC, removing the cause of action for private nuisance.

On May 14, 2021, Poolside filed an answer.

On June 15, 2022, Defendant filed a Motion to Compel Plaintiff Todd Johnson’s Deposition to be heard on September 20, 2022.

Trial is currently scheduled for November 3, 2022.

PARTY’S REQUESTS

Poolside requests the Court order Plaintiff to appear for his deposition within 10 days of the date of this hearing. Poolside also requests the Court impose monetary sanctions against Plaintiff totaling $2,581.65.

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

Poolside made multiple requests for dates for Plaintiff’s deposition but was never provided with them. On April 19, 2022, Poolside served a notice of deposition for May 18, 2022. On May 16, 2022, without serving objections, Plaintiff requested the deposition be taken off calendar as counsel was out of town. Poolside requested Plaintiff provide alternative dates, which were never given. On May 24, 2022, Defendant served an amended notice of deposition for June 9, 2022—Plaintiff again asked it be taken off calendar. Defendant again asked for alternative date prior to taking it off calendar, which Plaintiff was never provided. One day before the deposition, Plaintiff’s counsel promised to provide alternative dates within 48 hours; Plaintiff’s counsel still has yet to do so.

Poolside has made a diligent effort to schedule Plaintiff’s deposition while accommodating Plaintiff’s requests. The Court finds good cause and grants the motion.

Sanctions

Poolside is entitled to sanctions due to misuse of the discovery process. Poolside requests sanctions totaling $2,581.65, based upon 8 hours of attorney’s work at a rate of $205.00 per hour, one $60.00 filling fee, and a deposition cancelation fee that Poolside did not provide an amount for. 7 hours were spent preparing the motion and an opposition, 2 hours will be spent attending the hearing. Noting that this is an unopposed motion, the Court grants sanctions based upon 3 hours of attorney’s work. The Court cannot grant sanctions for a deposition cancelation fee when the amount attributable to that was not provided. As such, the Court grants $675.00 in sanctions.

CONCLUSION

Defendant Rajeshkumar Patel dba Poolside Inn Motel’s Motion to Compel Deposition of Plaintiff Todd Johnson is GRANTED. Plaintiff is ordered to appear for a mutually agreed upon deposition within 30 days of the hearing on this motion.

Defendant Rajeshkumar Patel dba Poolside Inn Motel’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay Poolside $675.00 in sanctions within 30 days of the hearing on this motion.

            Moving party is ordered to give notice of this ruling.