Judge: Jill Feeney, Case: 19STCV18424, Date: 2023-02-28 Tentative Ruling
PLEASE NOTE:
The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.
Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.
Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.
If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.
If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.
Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.
Case Number: 19STCV18424 Hearing Date: February 28, 2023 Dept: 30
Department 30, Spring Street Courthouse
February 28, 2023
19STCV18424
Motion to Compel Deposition of Plaintiff Joseph Acuna
DECISION
The motion is granted.
Sanctions in the amount of $1,160 are imposed on Plaintiff. Sanctions are due within 20 days after the date of this order.
Plaintiff is ordered to appear for deposition within 20 days or the first date provided by the prison.
The parties are ordered to contact the prison to determine the procedure necessary to depose Plaintiff. The parties will likely need to obtain a Court order to take the deposition.
The Court sets a Status Conference for March 3, 2023 at 8:30 a.m. The parties are ordered to appear and report on the information learned from the prison.
Background
This is an action for battery, negligence, intentional infliction of emotional distress, fraudulent concealment, and public nuisance arising from bedbug bites which Plaintiff sustained during his stay at a hotel in May 2017. Plaintiff Joseph Acuna filed his Complaint against Friendly Inn, Inc. and Li Yuan T. Chen on May 28, 2019.
Defendants filed the instant motion to compel Plaintiff’s deposition on September 29, 2022.
Summary
Moving Arguments
Defendants argue that Plaintiff failed to appear for his depositions on November 1, 2021 and June 3, 2022. Plaintiff’s counsel also failed to provide alternative dates for Plaintiff’s deposition.
Opposing Arguments
Acuna’s counsel attests that Plaintiff is currently incarcerated and requests more time to establish contact with Plaintiff and requests that sanctions not be imposed against counsel.
Reply Arguments
None.
Legal Standard
Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A party desiring to take an oral deposition shall give a notice in writing which states the specification of reasonably particularly of any materials to be produced by the deponent. (Code Civ. Proc., § 2025.220, subd. (a)(4).) A properly served deposition notice is effective to require a party to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).)
“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 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 Civ. Proc., § 2025.450, subd. (a).)
A motion brought to compel a deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)
On motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent's testimony would be taken, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party 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. (Code Civ. Proc., § 2025.450.)
Discussion
Defendants move to compel the deposition of Plaintiff Joseph Acuna.
Defendants’ counsel testifies that they served deposition notices on September 14, 2021 and May 4, 2022, setting Plaintiff’s deposition for November 1, 2021 and June 3, 2022 respectively. (Carpenter Decl., ¶3.) Plaintiff failed to appear for his depositions on both dates. (Id., ¶4.) On June 3, 2022, Plaintiff’s counsel requested that the deposition be rescheduled. (Id., ¶5.) Defendants’ counsel requested alternative dates for the deposition. (Id.) To date, Plaintiff has not provided alternative dates.
Plaintiff’s counsel testifies that Plaintiff is incarcerated and that counsel has been unable to contact Plaintiff. (Janfaza Decl., ¶5.) Plaintiff’s counsel requests additional time to determine Plaintiff’s availability. (Statement of non-opposition, p.2.)
Because Plaintiff failed to appear for his deposition, Defendants’ motion to compel Plaintiff’s appearance at deposition is granted.
With respect to sanctions, sanctions are mandatory where a party attended at the time and place specified in the deposition notice in the expectation that the deponent's testimony would be taken unless the Court finds that the party subject to the sanction acted with substantial justification. (Code Civ. Proc., § 2025.450.) Here, the parties’ email communications show that Plaintiff’s counsel did not seek to reschedule the June 3, 2022 deposition until the day of the deposition. Additionally, there is no evidence that Plaintiff’s counsel notified Defendants’ counsel that they lost contact with Plaintiff. Plaintiff’s counsel had ample opportunity to respond to Defendants’ deposition notices or communicate with Defendants’ counsel on this issue before the noticed deposition dates. Therefore, the Court does not find that Plaintiff acted with substantial justification in failing to appear for deposition.
Defendants request sanctions in the amount of $1,160 for 2 hours of attorney time at a rate of $300 per hour, filing fees, and court reporter no-show fees. Defendants’ request for sanctions is granted.
