Judge Douglas W. Stern, Case Number: 21STCV38437, Date: 2023-06-22 Tentative Ruling

Motion to Compel Appearance of Holcomb Engineering Contractors, Inc.’s Person Most Qualified at Deposition

Pamela Cole, et al vs. National General Insurance Company, et al., Case No. 21STCV38437

Moving Party: Defendants National General Insurance Company, National General Premier Insurance Company, Integon Insurance Company

This is a case in which the parties are disputing how much Defendant Integon Insurance should pay toward the repairs for a wooden deck of Plaintiffs that was destroyed during a wildfire. To fully evaluate Plaintiffs’ damages claim, Defendants subpoenaed Holcomb Engineering for a deposition. Holcomb Engineering was the company that excavated and constructed a new retaining wall. The Person Most Knowledgeable for Holcomb Engineering failed to appear for the deposition scheduled for April 12, 2023. Holcomb was properly served the deposition subpoena. Defendants are seeking to compel the PMK’s attendance. Defendants’ counsel made multiple attempts to contact Holcomb Engineering on the date that the deposition was to have taken place. (Miglietta Decl. ¶¶ 8-10.)

Code of Civil Procedure § 2020.220 provides in relevant part that the Court has jurisdiction over a witness served with a subpoena who refuses to appear: “(c) Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service:… (3) The deponent’s attendance at a court session to consider any issue arising out of the deponent’s refusal to be sworn, or to answer any question, or to produce specified items, or to permit inspection or photocopying, if the subpoena so specifies, or specified testing and sampling of the items produced.”

In this case, Defendants want to compel the attendance at deposition of Holcomb Engineering’s PMK because the PMK would have relevant information to Plaintiffs’ insurance claims as the business that made repairs to Plaintiffs’ property. Holcomb Engineering was properly served with a deposition subpoena. This Court has jurisdiction over Holcomb Engineering pursuant to CCP § 2020.220, and Defendants have properly moved for an order compelling the PMK’s attendance at deposition.

CCP Section 2023.010 holds that “failing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery” are grounds for discovery sanctions. Further, Section 1987.2 provides that the Court may “in its discretion award the amount of the reasonable expenses incurred in making or opposing” a discovery motion “including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification[.]”

California courts have repeatedly held that monetary sanctions are available against nonparties who “flout the discovery process.” (Temple Cmty. Hosp. v. Superior Ct. (1999) 20 Cal.4th 464, 476; see also Sears, Roebuck & Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350.)

Defendants have requested $2,460 in sanctions against Holcomb Engineering: (1) 8 hours of attorney time at $300.00 an hour; and (2) the $60 filing fee for this motion. This is an appropriate amount of sanctions considering Holcomb Engineering’s nonappearance and Defendants’ counsel’s attempts to contact Holcomb Engineering.

Therefore, Defendants’ request for sanctions is GRANTED in the amount of $2,460.

1. Defendants’ motion to compel deposition of Holcomb Engineering’s Person Most Knowledgeable is granted. Holcomb Engineering’s Person Most Knowledgeable is ordered to appear for deposition within 30 days of this hearing.

2. Holcomb Engineering is also ordered to pay $2,460 in sanctions due to the nonappearance of its Person Most Knowledgeable at the prior deposition date.