Judge: Elaine Lu, Case: 21STCV15826, Date: 2023-01-26 Tentative Ruling
Case Number: 21STCV15826 Hearing Date: January 26, 2023 Dept: 26
|
celia
ford, Plaintiff, v. christopher
martinez; arlene tibayan; bernard favela; albertsons companies, inc.;
safeway, inc.; the vons companies, inc.; et
al., Defendants. |
Case No.: 21STCV15826 Hearing Date: January 26, 2023 [TENTATIVE]
order RE: defendants’ motion to compel the deposition of Plaintiff |
Procedural
Background
On April 27, 2021, Plaintiff Celia Ford
(“Plaintiff”) filed the instant defamation action against Defendants
Christopher Martinez, Arleen Tibayan (erroneously sued as Arlene Tibayan),
Bernard Favela, Albertsons Companies, Inc., Safeway, Inc., and The Vons
Companies, Inc. (collectively “Defendants”).
The complaint asserts three causes of action for (1) Defamation at
Common Law and Pursuant to Civ. Code § 46, (2) Invasion of Privacy – False
Light, and (3) Vicarious Liability and Ratification of Wrongful Act.
On November 18, 2022, Defendants filed the
instant motion to compel Plaintiff’s deposition. On December 20, 2022, the parties stipulated that
the Plaintiff would appear for a video deposition for a full day on January 3,
2023. (Minute Order 12/20/22.) If the parties completed the deposition,
Defendants were to cancel the reservation for the instant motion. (Minute Order 12/20/22.) If the instant motion reservation was not
cancelled, the parties were “ordered to file a joint statement no later than
January 23, 2023 setting forth whether Plaintiff's deposition proceeded as
stipulated and ordered on January 13, 2023, and if not, why not.” (Minute Order 12/20/22.) No opposition or joint statement was
filed. On January 19, 2023, Defendants
filed a reply.
Legal
Standard
“Any party may obtain discovery . . . by
taking in California the oral deposition of any person, including any party to
the action. The person deposed may be a
natural person, an organization such as a public or private corporation, a
partnership, an association, or a governmental agency.” (CCP § 2025.010.)
Code of Civil Procedure § 2025.450(a)
provides: “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.”
Code of Civil Procedure § 2025.450(b)
provides: “A motion under subdivision (a) shall comply with both of the
following:
Code of Civil Procedure § 2025.450(c)
provides, “(1) If a motion under subdivision (a) is granted, the court shall
impose a monetary sanction . . . in favor of the party who noticed the
deposition and against the deponent or the party with whom the deponent is
affiliated, 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.”
Under Code of Civil Procedure §
2023.030(a), “[t]he court may impose a monetary sanction ordering that one
engaging in the misuse of the discovery process, or any attorney advising that
conduct, or both pay the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct. . . . If a monetary
sanction is authorized by any provision of this title, the court shall impose
that sanction unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the imposition of
the sanction unjust.” Failing to respond or to submit to
an authorized method of discovery is a misuse of the discovery process.
(CCP § 2023.010(d).)
Meet
and Confer
Code of Civil Procedure § 2025.450
requires a motion to compel a deposition to be accompanied by a meet and confer
declaration under Code of Civil Procedure § 2016.040. (CCP § 2025.450.) Code of Civil Procedure § 2016.040 provides
that “[a] meet and confer declaration in support of a motion shall state facts
showing a reasonable and good faith attempt at an informal resolution of each
issue presented by the motion.” (CCP §
2016.040.) “The motion shall be
accompanied by a meet and confer declaration . . . when the deponent fails to
attend the deposition and produce the documents, electronically stored
information, or things described in the deposition notice, by a declaration
stating that the petitioner has contacted the deponent to inquire about the
nonappearance.” (CCP § 2025.450(b)(2).)
As
discussed in detail below, Defendants have adequately met and conferred. (Veal Decl. ¶¶ 3-17, Exhs. A-J.)
Discussion
On June 16, 2022, Defendants served
their notice of deposition setting Plaintiff’s deposition for August 30,
2022. (Veal Decl. ¶ 3, Exh. A.) Between August 7, 2022 and August 25, 2022,
Defense Counsel repeatedly contacted Plaintiff’s Counsel regarding Plaintiff’s ability
to attend the deposition on August 30, 2022.
(Veal Decl. ¶ 4, Exh. B.) On
August 25, 2022, Plaintiff’s Counsel stated that Plaintiff was available for
deposition on October 7, 2022. (Veal
Decl. ¶ 4, Exh. B.)
On September 9, 2022, Defendants
served an amended notice of deposition set for October 7, 2022, to which
Plaintiff did not object. (Veal Decl. ¶
5, Exh. C.) On October 7, 2022, neither
Plaintiff nor Plaintiff’s Counsel appeared for Plaintiff’s deposition. (Veal Decl. ¶ 6.) After an hour of attempting to contact
Plaintiff’s Counsel, Defendant took a notice of non-appearance. (Veal Decl. ¶ 6, Exh. D.) Later that day, Plaintiff’s Counsel notified
Defense Counsel that he was unable to make the deposition because he ended up
in the hospital. (Veal Decl. ¶ 7, Exh.
E.) After further meeting and conferring
for months, the parties were unable to come to an agreement as to when
Defendants could conduct Plaintiff’s deposition. (Veal Decl. ¶¶ 8-16, Exhs. F-I.) Accordingly, on November 18, 2022, Defendants
served a second amended notice of deposition setting Plaintiff’s deposition for
November 30, 2022. (Veal Decl. ¶ 17,
Exh. J.)
On December 20, 2022, the parties
stipulated that Plaintiff would appear for a video deposition for a full day on
January 13, 2023. (Minute Order
12/20/22.) On December 22, 2022,
Defendants served there notice of deposition setting Plaintiff’s deposition for
January 13, 2023. (Supp. Veal Decl. ¶ 5,
Exh. B.) On December 23, 2022, Defense
Counsel sent the links for the remote deposition. (Supp. Veal Decl. ¶ 6, Exh. C.)
On January 13, 2023, Plaintiff
failed to appear at the noticed and stipulated deposition. (Supp. Veal Decl. ¶ 7.) Defendant attempted repeatedly to contact
Plaintiff’s Counsel. Plaintiff’s Counsel
informed Defense Counsel that he had the wrong date, and the parties were
unable to agree to a date for a deposition.
(Supp. Veal Decl. ¶¶ 7-12.) After
this call, Defendant took a notice of non-appearance. (Supp. Veal Decl. ¶ 13, Exh. D.)
As there is no valid objection to the
notice of the deposition, and Plaintiff has at least twice failed to appear at
noticed depositions, Defendants’ motion to compel the deposition of Plaintiff is
GRANTED.
Sanctions
Defendants seek sanctions of $9,346.60 against Plaintiff
and Plaintiff’s counsel of record to compensate Defendant for the attorney fees
and costs in bringing the instant motion.
Defense Counsel claim 12 hours for drafting the instant motion and an
anticipated 8 hours for the reply and preparing for and appearing at the
hearing at a claimed hourly rate of $420 an hour. (Veal Decl. ¶ 18.) Further, Defendants incurred $946.60 in costs
for Plaintiff’s non-appearance at her deposition on October 7, 2022. (Veal Decl. ¶ 18, Exh. K.)
If a motion to compel deposition “is granted, the court shall impose a monetary sanction . . . in favor of
the party who noticed the deposition and against the deponent or the party with
whom the deponent is affiliated, 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.”
(CCP § 2025.450(c), [italics added].)
Thus, sanctions are mandatory unless circumstances make the imposition
of sanctions unjust. Moreover, the
failure to respond to authorized discovery is an abuse of the discovery
process. (CCP § 2023.010(d); Cal. Rules of
Court, Rule 3.1348(a).)
Here, Plaintiff has failed to comply with at least two
deposition notices – one of which was stipulated to by Plaintiff. Accordingly, the imposition of sanctions
would not be unjust. However, the court
finds that the total amount requested – $9,346.60 – is unreasonable in view of the
totality of the circumstances, including the simple nature of the instant
motion and the lack of any opposition. Accordingly,
the Court finds that $2,826.60 reasonably
compensates Defendants for the attorney’s fees incurred in bringing this
motion.
Plaintiff Celia Ford and her counsel
of record George Frederick Braun are jointly and severally liable and ordered
to pay monetary sanctions in the amount of $2,826.60 to Defendants Christopher
Martinez, Arleen Tibayan, Bernard Favela, Albertsons Companies, Inc., Safeway,
Inc., and The Vons Companies, Inc. by and through counsel, within thirty (30) days
of notice of this order.
CONCLUSIONS AND
ORDER
For the foregoing reasons, Defendants
Christopher Martinez, Arleen Tibayan, Bernard Favela, Albertsons Companies,
Inc., Safeway, Inc., and The Vons Companies, Inc.’s motion to compel the
deposition of Plaintiff Celia Ford is GRANTED.
Plaintiff Celia Ford is ordered to appear for deposition and produce the
noticed documents within ten (10) days of notice of this order at a date and
time noticed by Defendants.
Defendants’ request for sanctions is
GRANTED AS MODIFIED.
Plaintiff Celia Ford and her counsel
of record George Frederick Braun are jointly and severally liable and ordered
to pay monetary sanctions in the amount of $2,826.60 to Defendants Christopher
Martinez, Arleen Tibayan, Bernard Favela, Albertsons Companies, Inc., Safeway,
Inc., and The Vons Companies, Inc. by and through counsel, within thirty (30)
days of notice of this order.
Moving Parties are to provide notice and
file proof of service of such.
DATED:
January 26, 2023 ___________________________
Elaine
Lu
Judge
of the Superior Court