Judge: Jill Feeney, Case: 21STCV00571, Date: 2023-02-24 Tentative Ruling
Case Number: 21STCV00571 Hearing Date: February 24, 2023 Dept: 30
Department 30, Spring Street Courthouse
February 24, 2023
21STCV00571
Motion to Compel Deposition of Defendant Isidro Gonzalez Granados filed by Plaintiff Francisco Chavez
DECISION
The motion is granted. Defendant Granados is ordered to appear for deposition within 30 days after the date of this order.
Sanctions in the amount of $1,536.65 are imposed jointly and severally on Defendant Granados and Defendant Granados’ Counsel of Record. Sanctions are due within 30 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 negligence arising from a vehicle collision which took place in January 2019. Plaintiff Francisco Chavez filed his Complaint against Defendants Isidro Gonzalez Granados and Gale/Triangle, Inc. (“Gale/Triangle”).
Plaintiff filed the instant motion to compel the deposition of Defendant Isidro Gonzalez Granados on October 17, 2022.
Summary
Moving Arguments
Plaintiff argues that Granados failed to attend his deposition on September 23, 2022. Plaintiff also requests sanctions.
Opposing Arguments
Granados argues that the motion is moot because he will voluntarily appear for deposition and is actively attempting to set a deposition date with Plaintiff’s 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
Plaintiff moves to compel the deposition of Defendant Isidro Gonzalez Granados.
Plaintiff’s counsel testifies that he attempted to set a mutually agreed upon deposition date with Granados’ counsel, who failed to provide his availability. (Foose Decl., ¶4.) On August 30, 2022, Plaintiff’s counsel informed Granados’ counsel that he had no choice but to unilaterally schedule the deposition. (Id., ¶4.) Plaintiff’s counsel set the deposition for September 23, 2022. (Id., ¶3.) On September 22, 2022, Plaintiff’s counsel attempted to contact Granados’ counsel by letter and received no response. (Id., ¶5.) Granados failed to appear for deposition on September 23, 2022 and a nonappearance was taken. (Id., ¶¶2, 6.) Plaintiff’s counsel again contacted Granados’ counsel to inquire about the deposition on October 7, 2022. (Id., ¶7.) As of the date of the filing of this motion, Granados’ counsel had not responded. (Id., ¶7.)
In opposition, Granados’ counsel testifies that on January 31, 2023, she emailed Plaintiff’s counsel to inform him that she was attempting to determine Granados’ availability. (Jeffrey Decl., ¶3.) On February 1, 2023, Granados’ counsel proposed deposition dates. (Id., ¶4.) As of February 1, 2023, the parties were still attempting to set Granados’ deposition. (Id., ¶6.)
There is no evidence that Granados has appeared for deposition or that defendant took any interest in this matter until this motion was filed. Therefore, Plaintiff’s motion to compel Granados to appear for 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, Plaintiff appeared to take Granados’ deposition on September 23, 2022 and Granados failed to appear. Because Granados’ counsel failed to provide deposition dates and failed to respond to Plaintiff’s counsel’s communications for over three months, the Court finds that Granados did not act with substantial justification. Plaintiff requests $1,536.65 in sanctions for four hours of attorney time at a rate of $250 per hour, $475 for the certificate of nonappearance fee, and $61.65 in filing fees. Plaintiff’s request for sanctions is granted.
