Judge Jill Feeney, Case 20STCV10800 2022-10-25 Tentative Ruling

Judge: Jill Feeney, Case: 20STCV10800, Date: 2022-10-25 Tentative Ruling

Case Number: 20STCV10800 Hearing Date: October 25, 2022 Dept: 30

Department 30, Spring Street Courthouse

October 25, 2022

20STCV10800

-Motion to Compel the Deposition of Plaintiff Ismael Gutierrez and Request for Sanctions filed by Defendant Drew McMillan

-Motion to Compel the Deposition of Plaintiff Natasha Ericta and Request for Sanctions filed by Defendant Drew McMillan

DECISION

Both motions are granted.

Plaintiff Ismael Gutierrez is ordered to appear for deposition within 30 days.

Plaintiff Natasha Ericta is ordered to appear for deposition within 30 days.

Sanctions in the amount of $560 are awarded jointly and severally against Plaintiff Gutierrez and Plaintiff’s Counsel of Record. Sanctions are due within 20 days after the date of this order.

Sanctions in the amount of $560 are awarded jointly and severally against Plaintiff Ericta and Plaintiff’s Counsel of Record. Sanctions are due within 20 days after the date of this order.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

This is an action for motor vehicle negligence arising from a vehicle collision which took place in March 2018. Plaintiffs Ismael Gutierrez and Natasha Ericta filed their Complaint against Defendant Drew McMillan on March 16, 2020.

Defendant filed the instant motions to compel Plaintiffs’ depositions on June 29, 2022.

Summary

Moving Arguments

Defendants allege Plaintiffs have failed to attend their deposition despite repeatedly rescheduling these deposition.

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

Defendant is entitled to orders compelling Plaintiffs’ attendance at deposition. Defendant has made significant efforts to work with Plaintiffs’ counsel to schedule deposition dates. Defendant’s counsel attempted to set Plaintiffs’ depositions with Plaintiff’s counsel four times, on 12/7/21, 3/15/22, 4/29/22, and 6/15/22. (Exhibits C, D.) Defendant postponed the depositions twice at Plaintiffs’ request. After Plaintiff would not provide mutually available dates, Defendant noticed Plaintiffs’ depositions for April 29, 2022. (Exhibit A) Plaintiffs objected on the grounds that the depositions were unilaterally set. (Exhibit E) Defendant refused to cancel the depositions unless Plaintiffs provided alternative deposition dates. (Exhibit F) Plaintiffs did not respond. (Exhibit E) Defendant took a certificate of non-appearance when Plaintiffs failed to appear at their noticed deposition. (Exhibit G) The deposition was rescheduled a fourth time for June 15, 2022 and Plaintiffs again objected on the grounds that Defendant selected the deposition date unilaterally. (Exhibit H)

Plaintiffs’ objections to Defendant’s deposition notices are not valid because Defendant properly served the deposition notices on Plaintiffs. There is no law that states Defendant cannot set a unilateral deposition date. Defendant communicated extensively with Plaintiffs to set a mutually available deposition date. Plaintiffs refused to provide available deposition dates, forcing Defendant to make this motion. Plaintiffs have not opposed this motion or explained their refusal to schedule deposition dates. Plaintiffs’ conduct demonstrates that orders compelling Plaintiffs’ depositions are necessary to allow their depositions to go forward.

With respect to sanctions, an award of sanctions is mandatory here because Defendant appeared at the time and place specified in the deposition notice in the expectation that the deponent's testimony would be taken. Thus, Defendant’s request for sanctions is granted.

Defendant requests sanctions in the amount of $1,120 motion based upon four hours of attorney time at $250 per hour plus a $60 filing fee per motion. This request is reasonable.