Judge: Kerry Bensinger, Case: 21STCV42884, Date: 2023-01-09 Tentative Ruling

Case Number: 21STCV42884    Hearing Date: January 9, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

          On November 19, 2021, Plaintiffs Manual Gallegos and Quinea Burnette (“Plaintiffs”) brought this wrongful death action against Defendant Shannon Rutherford (“Defendant”). Plaintiffs allege that on June 25, 2021, Manuel Gallegos (“Decedent”), drowned in a swimming pool on a property owned by Defendant.  Plaintiffs are the biological parents of Decedent, and Defendant is the biological grandmother of Decedent.

          On December 8, 2022, Plaintiffs filed this motion to compel Defendant to sit for her deposition and produce documents. Plaintiffs also request $1,000 in sanctions. Defendant has not filed an opposition.

          Compel Deposition

“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(a).)

On September 9, 2022, Plaintiffs served a deposition notice on Defendant. (Weinberg Decl., ¶ 2.) The notice indicates that Defendant’s deposition will take place on October 6, 2022, at 10:00 a.m. via zoom, and includes 10 requests for the production of documents. (Id., Ex. A.) For example, Request for Production No. 1 seeks: “All DOCUMENTS relating or referring to the INCIDENT.” (Ibid.) Request for Production No. 10 seeks: “All DOCUMENTS which evidence or constitute any insurance policy or policies which cover or potentially cover YOU for liability arising out of the INCIDENT.” (Ibid.) All of the requests for production seek documents that are discoverable and relevant to this action.

Counsel for Plaintiffs states that on October 5, 2022, the day before Defendant’s scheduled deposition, he contacted Defendant by phone to confirm her appearance. (Id., ¶ 3.) According to counsel, Defendant did not serve any written objections to the notice of deposition or attached document requests. (Ibid.) Defendant told counsel that she could not attend her deposition but promised that she would provide counsel with some proposed dates within a few days. (Ibid.) However, Defendant has not responded to counsel’s attempts to reschedule her deposition since then.  (Id., ¶¶ 4-7.)

Plaintiffs have properly noticed Defendant’s deposition and Defendant has failed to appear.  Accordingly, Plaintiffs’ motion to compel the deposition of Defendant Shannon Rutherford and production of documents is GRANTED.

Monetary Sanctions

“If a motion under [Code of Civil Procedure section 2025.450] subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition 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(g)(1).)

Plaintiffs request $1,000 in sanctions to cover their attorney fees for bringing this motion. Plaintiffs offer a declaration from counsel who states he spent 3 hours preparing this motion and anticipates spending another 2 hours preparing a reply and attending the hearing at an hourly rate of $250.

Pursuant to Section 2025.450(g)(1), the Court is obligated to impose sanctions. Plaintiffs’ counsel’s hourly rate is reasonable. However, this is an unopposed motion against a Defendant appearing in pro per. As such, counsel’s hours are excessive. The Court finds an hour for preparing this motion and another hour for attending the hearing to be sufficient—for a total of 2 hours at $250 per hour.

Accordingly, the Court imposes $500 in sanctions against Defendant.

Moving party to give notice.

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.