Judge Katherine Chilton, Case 21STLC05196 2022-12-21 Tentative Ruling

Judge: Katherine Chilton, Case: 21STLC05196, Date: 2022-12-21 Tentative Ruling

Case Number: 21STLC05196 Hearing Date: December 21, 2022 Dept: 25

PROCEEDINGS: MOTION TO CONTINUE TRIAL DATE

MOVING PARTY: Defendants Geoffrey Neal Walker, et al.

RESP. PARTY: None

MOTION TO CONTINUE TRIAL DATE

(CRC Rule 3.1332)

TENTATIVE RULING:

The Motion to Continue Trial Date filed by Defendants Geoffrey Neal Walker, et al. is DENIED.

The Court, on its own Motion, continues the trial date to JUNE 20, 2023 at 8:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Motion and discovery cut-off dates are to follow the new trial date.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) NOT OK[1]

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of December 18, 2022 [ ] Late [X] None

REPLY: None filed as of December 18, 2022 [ ] Late [X] None

ANALYSIS:

I. Background

On July 15, 2021, Plaintiff Leisly Cruz-Gomez (“Plaintiff”) filed an action against Defendants Geoffrey Neal Walker (“Geoffrey”) and Lee Walker (“Lee”), (collectively, “Defendants”), for motor vehicle negligence, arising out of an alleged automobile accident that took place on August 22, 2019. On November 23, 2022, Defendants filed a joint Answer to the Complaint and a Demand for Jury Trial.

On December 27, 2021, and January 25, 2022, Plaintiff filed Notices of Related Case.

On March 22, 2022, Joseph D. Ryan, counsel for Plaintiff, filed a Motion to be Relieved as Counsel. On June 14, 2022, the Court granted counsel’s Motion and signed the Order relieving him as counsel of record for Plaintiff. (6-14-22 Minute Order; 6-14-22 Order.)

On October 25, 2022, Defendants filed a Motion for Order Compelling Plaintiff’s Attendance and Testimony at Deposition and Request for Sanctions. No opposition has been filed.

On November 1, 2022, Defendants filed the instant Motion to Continue Trial Date and All Related Discovery Dates (“Motion”). No opposition has been filed.

II. Legal Standard & Discussion

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (Cal. Rules of Court, rule 3.1332(c).) The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (Ibid.) Good cause includes the unavailability of an essential lay or expert witness, party, or trial counsel; “the substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;” the addition of a new party; a party’s excused inability to obtain evidence; or a significant, unanticipated change in the case. (Ibid.)

Furthermore, the Court may look to the following factors in determining whether a trial continuance is warranted:

“(1) The proximity of the trial date;

(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3) The length of the continuance requested;

(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7) The court's calendar and the impact of granting a continuance on other pending trials;

(8) Whether trial counsel is engaged in another trial;

(9) Whether all parties have stipulated to a continuance;

(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11) Any other fact or circumstance relevant to the fair determination of the motion or application.

(Cal. Rules of Court, rule 3.1332(d)(1)-(11).)

Defendants move to continue the trial date approximately six (6) months beyond the currently set trial date, along with all discovery and motion cut-off dates. (Mot. pp. 1-3.) Trial is currently set for January 12, 2023. (7-15-21 Third Amended Standing Order.) Defendants argue that they need to conduct written discovery, depose Plaintiff, and conduct an Independent Medical Examination. (Ibid. at pp. 2-3; Fakih Decl. ¶ 2.) Defendants have been unsuccessfully in their attempts to depose Plaintiff and have filed a separate motion to compel Plaintiff’s attendance at a deposition. (Ibid.) Defendants have also been unable to obtain Plaintiff’s medical records. (Ibid.) They answered the Complaint eleven (11) months ago and would be prejudiced if the trial date and corresponding discovery dates were not continued. (Ibid. at pp. 2, 4.) This is the first continuance requested in the instant case. (Ibid. at p. 4.) Finally, “all parties involved would be denied a fair trial if they have to proceed to Trial without having completed discovery.” (Ibid. at p. 5.)

The Court finds that there is good cause to continue trial as discovery has not been completed, the trial date is approaching, and this is the first continuance requested in the case.

However, the Court notes that Plaintiff was served with the moving papers via electronic mail. Code of Civil Procedure § 1010.6 authorizes service of documents by electronic service (service by e-mail) in certain enumerated circumstances. Code of Civil Procedure § 1010.6(a)(2)(A)(ii) provides, “[f]or cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized” only: (1) “if a party . . . has expressly consented to receive electronic service in that specific action”, (2) “if . . . the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d)”, or (3) “if . . . the document is served electronically pursuant to the procedures specified in subdivision (e)”, that is, electronic service is made upon a party who is represented by counsel. (Code Civ. Proc., §§ 1010.6(a)(2)(A)(ii), (c), (d), (e).) Here, Plaintiff is not represented by an attorney and there is no indication that she has consented to electronic service.

For this reason, Defendants’ Motion to Continue Trial Date is DENIED.

However, the Court, on its own Motion, continues the trial date to JUNE 20, 2023 at 8:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Motion and discovery cut-off dates are to follow the new trial date.

III. Conclusion & Order

For the foregoing reasons,

The Motion to Continue Trial Date filed by Defendants Geoffrey Neal Walker, et al. is DENIED.

Moving party is ordered to give notice.

[1] Self-represented Plaintiff was improperly served by electronic service.

PROCEEDINGS: MOTION TO COMPEL ATTENDANCE AND TESTIMONY AT DEPOSITION; REQUEST FOR MONETARY SANCTIONS

MOVING PARTY: Defendants Geoffrey Neal Walker, et al.

RESP. PARTY: None

MOTION TO COMPEL ATTENDANCE AND TESTIMONY AT DEPOSITION;

REQUEST FOR MONETARY SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

The Motion to Compel Plaintiff’s Attendance and Testimony at Deposition filed by Defendants Geoffrey Neal Walker, et al. is CONTINUED to FEBRUARY 16, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendants must properly serve Plaintiff with the moving papers. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) NOT OK[1]

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of December 18, 2022 [ ] Late [X] None

REPLY: None filed as of December 18, 2022 [ ] Late [X] None

ANALYSIS:

I. Background

On December 27, 2021, and January 25, 2022, Plaintiff filed Notices of Related Case.

On October 25, 2022, Defendants filed the instant Motion for Order Compelling Plaintiff’s Attendance and Testimony at Deposition and Request for Sanctions (“Motion”). No opposition has been filed.

On November 1, 2022, Defendants filed a Motion to Continue Trial Date and All Related Discovery Dates. No opposition has been filed.

II. Legal Standard

Code of Civil Procedure § 2025.450(a) provides:

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”

The motion shall “(1) set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “(2) be accompanied by a meet and confer declaration under Section 2016.040, or, 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.” (Code Civ. Proc. § 2025.450(b)(2).)

A court shall impose monetary sanctions in favor of the moving party if the motion to compel is granted, unless “the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450(g)(1).)

III. Discussion

A. Motion to Compel

Defendants move to compel Plaintiff to attend and testify at a deposition scheduled according to notices served on December 10, 2021, and July 28, 2022. (Mot. pp. 1-2.)

On December 10, 2021, Defendants served Plaintiff with a Notice of Taking Deposition scheduled for March 23, 2022. (Fakih Decl. ¶ 2; Ex. A.) On March 17, 2022, Plaintiff’s counsel informed defense counsel that he was unable to contact Plaintiff and planned to withdraw as counsel. (Ibid. at ¶ 3, Ex. B.) Plaintiff’s counsel filed a Motion to be Relieved as Counsel on March 22, 2022, which was granted on June 14, 2022. (Ibid. at ¶¶ 4, 6.) Plaintiff did not appear at the noticed deposition on March 23, 2022. (Ibid. at ¶ 5.)

On July 28, 2022, Defendants served Plaintiff with another Notice of Taking Deposition, scheduled for September 15, 2022, via mail. (Ibid. at ¶ 7, Ex. C.) On September 14, defense counsel attempted to contact Plaintiff, who was self-represented at that time; however, the first phone number available to defense counsel was disconnected, and the second phone number was not accepting calls or voicemails. (Ibid. at ¶ 8.) Defense counsel sought another way to contact Plaintiff by communicating with her former counsel; however, former counsel indicated that he also had a difficult time communicating with Plaintiff. (Ibid.) On September 15, 2022, defense counsel again called Plaintiff and received a message that the voicemail on the phone was not set up. (Ibid. at ¶ 9.) Plaintiff did not appear at the deposition scheduled for September 15, 2022, and defense counsel obtained a certificate of nonappearance. (Ibid. at ¶ 10, Ex. D.)

As of the date of the instant Motion, Plaintiff has not communicated with defense counsel. (Ibid. at ¶¶ 11-12.)

Defendants have submitted evidence that they served a deposition notice on Plaintiff; however, Plaintiff did not serve a valid objection and did not appear at the deposition. Defendants served another notice of a scheduled deposition and attempted to contact Plaintiff on several occasions; however, they could not find a way to communicate with Plaintiff. Plaintiff did not object and did not attend the second noticed deposition. Thus, the Court finds that Defendants properly served notices of deposition on Plaintiff and attempted to meet and confer with Plaintiff.

For this reason, Defendants’ Motion to Compel Plaintiff’s Attendance and Testimony at Deposition is CONTINUED. Defendants are ordered to properly serve Plaintiff with the moving papers.

B. Sanctions

Code of Civil Procedure § 2023.030(a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010(d).) In addition, a court shall impose monetary sanctions if a motion to compel a deposition is granted unless “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(g)(1).)

Defendants request monetary sanctions in the amount of $461.65 to be paid by Plaintiff, as follows: $400.00 for attorney’s fees for two hours of preparing and filing the instant Motion, at a rate of $200.00 per hour, and $61.65 in filing fees. (Fakih ¶ 13.)

Given that the Court continues the hearing on the Motion, the matter of sanctions will be addressed at the next scheduled hearing.

IV. Conclusion & Order

For the foregoing reasons,

Moving party is ordered to give notice.

[1] Self-represented Plaintiff was improperly served by electronic service.