Judge Kerry Bensinger, Case Number: 22STCV10138, Date: 2023-08-03 Tentative Ruling

Judge: Kerry Bensinger, Case: 22STCV10138, Date: 2023-08-03 Tentative Ruling

Case Number: 22STCV10138 Hearing Date: August 3, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: August 3, 2023 TRIAL DATE: September 20, 2023

CASE: Tiffany Alvarado, et al. v. Joel Negrete

CASE NO.: 22STCV10138

MOTION FOR ORDER COMPELLING PLAINTIFF TIFFANY ALVARADO’S AND PLAINTIFF DIANA MARTINEZ’S ATTENDANCE, TESTIMONY, AND PRODUCTION OF DOCUMENTS AT DEPOSITION

MOVING PARTY: Defendant Joel Negrete

RESPONDING PARTY: No opposition

I. BACKGROUND

On March 23, 2022, Plaintiffs, Tiffany Alvarado and Diana Martinez, filed this action against Defendant, Joel Negrete, for injuries and damages arising from a motor vehicle collision.

Defendant served Plaintiffs with deposition notices for May 31, 2022. Following meet and confer efforts, Defendant rescheduled the depositions for March 1, 2023, and again for June 21, 2023. However, on June 19, 2023, plaintiffs’ counsel notified Defendant that Plaintiffs would be unavailable for the deposition.

Defendant now moves to compel Plaintiffs to attend and testify at deposition. Defendant seeks monetary sanctions against Plaintiffs and their counsel.

The motion is unopposed.

II. LEGAL STANDARDS TO COMPEL DEPOSITION

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).)

A. 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, subd. (g)(1).)

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:¿¿¿

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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.)¿¿

III. DISCUSSION

Defendant first served a notice of taking Plaintiffs’ depositions on May 31, 2022. Yet, despite rescheduling the depositions to accommodate Plaintiffs’ schedule, Plaintiffs have yet to appear for deposition. For these reasons, Defendant seeks an order compelling each Plaintiff to appear and testify at deposition on August 10, 2023. (See Declaration of Nancy Mendoza.)

Defendant properly noticed Plaintiffs’ deposition and Plaintiffs failed to appear. Accordingly, Defendant’s motion to compel is GRANTED.

Monetary Sanctions

Pursuant to Section 2025.450, subdivision (g)(1), the Court is obligated to impose sanctions. Plaintiffs’ counsel has filed a declaration stating that he explained to Plaintiffs that Defendant was entitled to take Plaintiffs’ and that he did everything possible to provide the deposition discovery. The Court finds plaintiffs’ counsel meets his burden to show he did not counsel this discovery abuse. (See Hennings, supra, 58 Cal.App.5th at p. 81.) Accordingly, the Court imposes monetary sanctions against each Plaintiffs only in the amount of $295.17, which consists of one hour at defense counsel’s hourly rate, one hour of defense counsel’s legal assistant’s time, and $60 filing fee.

IV. CONCLUSION

The motion to compel is GRANTED. The Court orders Plaintiffs Tiffany Alvarado and Diana Martinez to attend and testify at deposition on August 10, 2023 at 10:00 a.m. and 2:00 p.m., respectively. Plaintiffs are ordered to provide documents responsive to the production demands at deposition.

The Court imposes $295.17 in monetary sanctions against each Plaintiff. Sanctions are to be paid to Defendant, by and through their counsel, within 30 days of notice of this order.

Moving party to give notice.

Dated: August 3, 2023 ___________________________________

Kerry Bensinger

Judge of the Superior Court

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.