Judge Kerry Bensinger, Case 21STCV13401 2023-05-02 Tentative Ruling

On August 19, 2021, Plaintiff Juan Manuel Posadas Maya filed this action against Defendant Junior Raymond Millan for injuries arising from a May 12, 2020 motor vehicle accident.

Plaintiff now moves to compel Defendant’s attendance at deposition. Plaintiff seeks sanctions against Defendant and his counsel.

Any party may obtain discovery by taking in California the oral deposition of any person. (Code Civ. Proc., § 2025.010.) “If, after service of a deposition notice, a party to the action…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.” (Code Civ. Proc., § 2025.450, subd. (a).)

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to interrogatories or inspection demands, the court “shall impose a monetary sanction . . . unless it 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., §§ 2030.290, subd. (c), 2031.300, subd. (c).)¿¿¿ In the context of a motion to deem requests for admission admitted, it is mandatory that the court impose monetary sanctions on the party or attorney, or both, whose failure to serve a timely response to the request necessitated the motion.¿ (Code Civ. Proc., § 2033.280, subd. (c).)

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party’s misuse of the discovery process, monetary sanctions against the party’s attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney’s actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney’s advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

Plaintiff served a notice of taking Defendant’s deposition on five occasions between May 27, 2021, and October 18, 2022. Defendant failed to object to Plaintiff’s October 18, 2022 notice of deposition and failed to appear for deposition. For these reasons, Plaintiff seeks an order compelling Defendant to appear for and produce documents at deposition on May 8, 2023. (See Khorshidi Decl.)

Defense counsel contends the motion should be taken off calendar as moot because dates of availability for deposition have since been proposed. Defense counsel further contends Defendant has yet to appear for deposition through no fault of current counsel. Specifically, Defendant’s prior counsel canceled the previously scheduled depositions and current defense counsel was unable to contact their client between July of 2022 and April of 2023. (See White Decl.)

In reply, Plaintiff argues that Defendant would not have provided dates for taking Defendant’s deposition unless Plaintiff had filed this motion and that Defendant’s discovery misconduct occurred after current defense counsel substituted into the matter in March 2022. Further, a court order is necessary to compel Defendant’s appearance for deposition since trial is scheduled for June 29, 2023.

The Court agrees with Plaintiff. Trial is less than two months away. Defendant has failed to appear for deposition despite being properly served with several deposition notices between May 27, 2021, and October 18, 2022. Accordingly, Plaintiff’s motion to compel Defendant’s appearance at deposition is GRANTED.

(Code Civ. Proc., § 2025.450, subd. (g)(1).) Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Defense counsel meets their burden.¿

Accordingly, the Court imposes monetary sanctions against Defendant only in the reduced amount of $2,119.50 (2 hours of Plaintiff’s counsel’s hourly rate, $429 court report cancellation fee, $390.50 videographer cancellation fee, and $60 filing fee).

The Court orders Defendant Junior Raymond Millan to appear for deposition and to produce documents responsive to the deposition notice on or before May 8, 2023.

The Court orders Defendant Junior Raymond Millan to pay monetary sanctions of $2,119.50 to Plaintiff, by and through Plaintiff’s counsel, within 30 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court