Judge: Daniel S. Murphy, Case: 21STCV45709, Date: 2024-02-02 Tentative Ruling

Case Number: 21STCV45709    Hearing Date: February 2, 2024    Dept: 32

BACKGROUND

            On December 15, 2021, Plaintiffs Kostiv & Associates (K&A) and Petro R. Kostiv (Kostiv) filed this action against various Defendants, asserting 16 causes of action stemming from an alleged conspiracy to embezzle money from Plaintiffs. The allegations mainly revolve around the actions of Diego Gonzalez, the former finance director for K&A, who fraudulently entered into contracts with Ezlawpay and Payink on behalf of K&A, resulting in false invoices charged to K&A. Plaintiffs brought this suit against: Ezlawpay; Payink; Gonzalez; Gonzalez’s wife, Elena Padilla (allegedly the owner of Ezlawpay); two corporate officers of Payink; and various employees who worked under Gonzalez at K&A’s finance department. The operative First Amended Complaint was filed May 2, 2022.

            On September 13, 2022, Payink filed a cross-complaint against Plaintiffs for (1) unjust enrichment, (2) work, labor, and services, and (3) quantum meruit. Payink alleges that Plaintiffs failed to compensate Payink for services performed.  

            On December 29, 2023, Plaintiffs filed the instant motion to compel the depositions of Gonzalez and Padilla, and for an order that Defendants participate in trial preparation or be deemed as having abandoned the case. Defendants have not filed an opposition.

DISCUSSION

I. Depositions

“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 . . . 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.” (Code Civ. Proc., § 2025.450(a).) “If that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just . . . .” (Id., § 2025.450(h).)

On August 19, 2022, the Court granted Plaintiffs’ motion to compel the depositions of Gonzalez and Padilla, ordering the depositions to take place on October 14, 2022 and December 9, 2022, respectively. Padilla’s deposition was not taken because she filed for bankruptcy (Quiroga Decl. ¶ 8), but the automatic stay was lifted on September 19, 2023. Gonzalez was partly deposed for one day and agreed to appear for a second day to be deposed for an additional three to four hours. (Id., ¶ 9.) However, Gonzalez subsequently stopped communicating with Plaintiffs. (Ibid.) Given these facts, an order compelling the depositions is warranted. Defendants must participate in discovery even if they are currently pro per.

II. Trial Preparation

Plaintiffs request that the Court order Defendants to participate in trial preparation, or otherwise deem Defendants to have abandoned the case. There is no authority or need for such an order. Defendants are already required to appear at the status conference and trial.

CONCLUSION

            Plaintiffs’ motion to compel arbitration is GRANTED. Plaintiffs’ motion to compel trial preparation or deem the case abandoned is DENIED.