Judge: Jon R. Takasugi, Case: 21STCV33893, Date: 2023-04-12 Tentative Ruling

Case Number: 21STCV33893    Hearing Date: April 12, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ motion to compel the deposition of third-party witness Yajaira Vivas is GRANTED.

On September 14, 2021, Plaintiff John Deere Construction & Forestry Company brought this claim and delivery action against Defendant Luis Vivas Arias. The complaint alleges Plaintiff financed Defendant’s purchase of construction equipment, but Defendant failed to make payments and refuses to surrender the equipment.

On August 11, 2022, the Court granted Plaintiff's application for writ of possession. On September 4, 2022, Plaintiff served Plaintiff’s spouse, Yajaira Vivas (“Ms. Vivas”), with a deposition subpoena.

Plaintiff now moves to compel Ms. Vivas’s attendance. Plaintiff also requests $1,060.00 in sanctions. The motion is unopposed.

Legal Standard

“If a subpoena requires the attendance of a witness…at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare…” (Code Civ. Proc. § 1987.1(a).)

Discussion

On September 24, 2022, Plaintiff personally served Ms. Vivas with a third-party deposition subpoena. (Dunning Decl., Ex. A.) The deposition was scheduled for November 4, 2022. (Ibid.) Counsel for Plaintiff states the purpose of deposing Ms. Vivas is to ascertain the location of equipment for which the Court issued a writ of possession. Ms. Vivas’s testimony is therefore highly relevant to this action. However, Ms. Vivas has failed to sit for her deposition. (Id., ¶ 4.)

No party—including Ms. Vivas—has sought a protective order, filed a motion to quash, or filed an opposition to this motion.  Plaintiff’s motion to compel the deposition of Ms. Vivas is properly granted.

Plaintiff also requests $1,060.00 in sanctions.

“Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification…” (Code Civ. Proc. § 1987.2(a).) “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed...” (Cal. R. Ct., rule 3.1348(b).)

Sanctions are warranted because there is not substantial justification for Ms. Vivas’s failure to sit for her noticed deposition. Counsel for Plaintiff states his hourly rate is $200 per hour. (Dunning Decl., ¶ 7.) Counsel further states he spent four hours preparing this motion and anticipates spending one hour attending the hearing. (Ibid.) The Court finds counsel’s hourly rate and number of hours billed to be reasonable. $200 per hour for five hours plus a $60 filing fee equals $1,060.00.

Accordingly, $1,060.00 in sanctions are imposed.

Defendants’ motion to compel the deposition of third-party witness Yajaira Vivas is GRANTED.

Sanctions are imposed against Yajaira Vivas in the amount of $1,060.00.

It is so ordered.

Dated: April     , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.