Judge Katherine Chilton, Case 21STLC05357 2023-04-10 Tentative Ruling

PROCEEDINGS: MOTION TO COMPEL PLAINTIFF’S DEPOSITION; REQUEST FOR MONETARY SANCTIONS

The hearing on the Motion to Compel Plaintiff’s Deposition and Request for Monetary Sanctions filed by Defendant Silvestre Barraza Jr. is CONTINUED to MAY 10, 2023 at 8:30 A.M. in Department 25 at the SPRING STREET COURTHOUSE.

On July 21, 2021, Plaintiff Leonardo Jose Rodriguez (“Plaintiff”) filed an action against Defendant Silvestre Barraza (“Defendant”) for motor vehicle and general negligence arising out of an alleged automobile accident that took place on July 21, 2019.

On November 23, 2021, Defendant Silvestre Barraza Jr., erroneously sued and served as Silvestre Barraza, filed an Answer to the Complaint.

On November 30, 2022, the Court granted Defendant’s Motion to Compel Plaintiff Rodriguez’s Responses to Request for Production of Documents, Set One. (11-30-22 Minute Order.). The Court ordered Plaintiff Rodriguez to submit verified responses, without objections, within twenty (20) days of notice of the Court order and to pay sanctions in the amount of $530.00. (Ibid.)

On December 7, 2022, based on the Stipulation of the parties, the Court continued the trial date to May 10, 2023, along with all corresponding discovery and pre-trial dates. (12-7-22 Stipulation and Order.)

On January 9, 2022, the Court granted Defendant’s Motion to Compel Plaintiff Rodriguez’s Responses to Form Interrogatories, Set One. (1-9-22 Minute Order.). The Court ordered Plaintiff Rodriguez to submit verified responses, without objections, within twenty (20) days of notice of the Court order and to pay sanctions in the amount of $530.00. (Ibid.)

On February 28, 2023, the Court granted Counsel Ameer A. Shah, Esq.’s Motion to be Relieved as Counsel as to Plaintiff Leonardo Jose Rodriguez. (2-28-23 Minute Order; 2-28-23 Order.)

On March 14, 2023, Defendant filed the instant Motion to Compel Plaintiff’s Deposition and Request for Monetary Sanctions (“Motion”). Defendant also moves to continue the trial date.

“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).)

Defendant Barraza Jr. moves for an order compelling Plaintiff to attend and testify at a deposition within fifteen (15) days of the Court’s Order at the Law Offices of Cullins & Grandy LLP. (Mot. pp. 1-2.) Defendant also requests monetary sanctions in the amount of $1,208.50. (Ibid. at p. 2.)

On December 2, 2021, Defendant served Plaintiff with a Notice of Taking Deposition, scheduled for February 16, 2022. (Lozano Decl. ¶ 2, Ex. A.) Defendant served Plaintiff with a Second Notice of Taking Deposition on March 11, 2022, scheduled for April 28, 2022. (Ibid. at ¶ 3, Ex. B.) The deposition did not take place. (Ibid.) Defense counsel began communicating with Plaintiff’s counsel to set another deposition date. (Ibid. at ¶ 4, Ex. C.) Based on these communications, Defendant served Plaintiff with a Third Notice of Taking Deposition scheduled for October 24, 2022. (Ibid. at ¶ 5, Ex. D.) The deposition did not take place. (Ibid.) Due to the upcoming trial scheduled for May 10, 2023, Defendant served Plaintiff with a Fourth Notice of Taking Deposition on January 10, 2023, scheduled for February 8, 2023. (Ibid. at ¶ 6, Ex. E.) On February 3, 2023, Plaintiff’s counsel informed Defendant that he was unable to reach Plaintiff and Plaintiff would not appear at the deposition on February 8, 2023. (Ibid. at ¶ 7, Ex. F.) On February 8, 2023, Plaintiff’s counsel, defense counsel, and a court reporter appeared for the deposition; however, Plaintiff did not appear. (Ibid. at ¶ 8.) An Affidavit of Non-Appearance was prepared. (Ibid. at ¶ 8, Ex. G.) Plaintiff has not served an objection to any of Defendant’s notices of deposition. (Ibid.)

On February 28, 2023, Plaintiff’s attorney’s Motion to be Relieved as Counsel was granted. (Ibid. at ¶ 9.) Defense counsel attempted to contact Plaintiff directly by calling him at the number listed on the Motion to be Relieved as Counsel; however, there was no response and no way to leave a voicemail. (Ibid.) Defendant has no other method of contacting Plaintiff. (Ibid.)

Defendant adds that the Court has already granted Defendant’s motions to compel discovery responses. (Ibid. at ¶ 10.) Despite the Court order compelling responses, Plaintiff has not responded to the discovery requests. (Ibid.) Based on conversations with Plaintiff’s former counsel and Plaintiff’s lack of response, “Defense counsel believes that Plaintiff has abandoned this case.” (Ibid. at ¶ 11.)

Defendant has submitted evidence that Plaintiff was served with deposition notices on four different occasions; however, Plaintiff did not serve a valid objection and did not appear at the final deposition noticed for February 8, 2023. The Court notes that although, Plaintiff’s counsel informed Defendant via email that he could not reach Plaintiff and Plaintiff would not appear at the deposition, Plaintiff did not serve a valid objection to the Fourth Notice of Deposition under Code of Civil Procedure §¿2025.410. According to §¿2025.410(a), “[a]ny party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”

Following Plaintiff’s failure to appear at the deposition scheduled for February 8, 2023, defense counsel attempted to contact Plaintiff but was not successful. Thus, Defendant has complied with most of the requirements for the instant Motion. However, the Court finds that the moving papers were not served in compliance with Code of Civil Procedure § 1005(b), which requires papers to be served sixteen (16) courts days prior to the hearing, with an additional five (5) days in case of service by mail. Here, Defendant served the moving papers on Plaintiff by mail on March 14, 2023, sixteen (16) court days and two (2) calendar days before the hearing. For this reason, the Court continues the hearing on the Motion to allow Plaintiff additional time to review the moving papers.

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).)

Defendant requests monetary sanctions in the amount of $1,208.50, as follows: court reporter’s appearance at deposition in the amount of $525.00, 0.4 hours of defense counsel’s time attending the deposition, billed at a rate of $215.00 per hour, 2.5 hours of counsel’s time to prepare the instant Motion and appear at the hearing, billed at a rate of $215.00 per hour, and $60.00 for filing fees. (Lozano Decl. ¶¶ 12-14, Ex. H.)

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

Defendant also requests a continuance of trial in order to complete discovery or file a motion for terminating sanctions, as trial is currently scheduled for May 10, 2023. (Mot. pp. 2, 8-9; Lozano Decl. ¶ 15.) The Court notes that a request for continuance of trial requires a separate noticed motion; combining motions is impermissible and allows the moving party to avoid paying the requisite filing fees. Filing fees are jurisdictional and it is mandatory for court clerks to demand and receive them. (See Duran v. St. Luke's Hospital (2003) 114 Cal. App. 4th 457,460; Govt. Code § 70617(a).)

For this reason, the Court denies Defendant’s request to continue trial date. The Court notes that if Plaintiff fails to appear on the date of trial, the case will be dismissed without prejudice.

[1] The moving papers were not served in compliance with Code of Civil Procedure § 1005(b), which requires papers to be served 16 courts days prior to the hearing, with an additional 5 days in case of service by mail.