Judge: Latrice A. G. Byrdsong, Case: 22STLC03082, Date: 2023-10-16 Tentative Ruling
Case Number: 22STLC03082 Hearing Date: October 16, 2023 Dept: 25
Hearing Date: Monday, October 16, 2023
Case Name: SALVADOR
MENDOZA, AN INDIVIDUAL, v. PAYTON MAXENE JOHNSON, AN INDIVIDUAL, LINCOLN
STANLEY ST. CLAIR, AN INDIVIDUAL, EAN HOLDINGS, LLC, A CORPORATION, AND DOES
1-10
Case No.: 22STLC03082
Motion: Motion to Compel Deposition
Moving Party: Defendant
EAN Holdings, LLC
Responding Party: None
Notice: OK
Recommended Ruling: For the foregoing reasons, Defendant’s
Motion to Compel the Deposition of Salvador Mendoza is CONTINUED TO ________ at
______ a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court
days before the next scheduled hearing, Defendant Talley must file and serve
supplemental papers as requested herein. Failure to do so may result in this
Motion being placed off calendar or denied.
BACKGROUND
On May 3, 2022, Plaintiff Salvador
Mendoza (“Plaintiff”) filed an action against Defendants Payton Maxene Johnson,
Lincoln Stanley St. Clair, and EAN Holdings, LLC (“Defendant”) for motor
vehicle and general negligence, arising out of an alleged accident that
occurred on May 17, 2020.
On April 12, 2023, Counsel Ivan M. Lopez
Ventura filed a Motion to be Relieved as Counsel as to Plaintiff. On August 1,
2023, the Court granted Counsel Ventura’s Motion. (08/01/23 Minute Order.)
On August 14, 2023, Defendant filed
the instant Motion to Compel the Deposition of Salvador Mendoza (“Motion”). No
opposition has been filed. On September 15, 2023, the Court continued the
hearing for Defendant’s Motion to Compel to October 16, 2023, to allow
Defendant an opportunity to present the court with a supplemental declaration
regarding its efforts to meet and confer or inquire about Plaintiff’s
nonappearance. (Notice of Continuance, 09/15/23, 09/11/23 Minute Order.)
MOVING PARTY
POSITION
Defendant
moves to compel Plaintiff to appear for deposition on a date determined at the
hearing on the Motion and requests monetary sanctions in the amount of $750.00
against Plaintiff.
OPPOSITION
None.
REPLY
None.
ANALYSIS
I. Motion to
Compel Deposition
A. Legal Standard
Any party may
obtain discovery … by taking the oral deposition of any person, including any
party to the action. (Code Civ. Proc., § 2025.010.)
CCP section¿2025.450(a)
provides:¿“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 . . . 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 . . . described in the deposition
notice.” (Code Civ. Proc., §
2025.450(a).)
CCP section¿2025.450(b)
provides:¿“A motion under subdivision (a)… shall 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.”¿
(Id., § 2025.450(b).)
On January 27, 2023, Defendant
served Plaintiff with a deposition notice. (Boyd Decl. ¶ 4, Ex. A.) Plaintiff’s
prior counsel appeared at the deposition, but Plaintiff did not appear and was
unable to be contacted by his counsel. (Ibid. at ¶ 5.) On July 11, 2023,
Defendant served Plaintiff with another Notice of Deposition. (Ibid. at
¶ 6, Ex. B.) Plaintiff failed to appear at the scheduled deposition. (Ibid.
at ¶ 7.) Defense counsel states that the deposition is relevant to determine
Defendant’s potential liability and “[t]he absence of this information
prejudices the defense” in its ability to evaluate the viability of the claims
presented, the injuries sustained, the need of additional discovery, possible
settlement negotiations, and preparation for trial. (Ibid. at ¶ 9.)
Here, Defendant’s motion is not
accompanied by a meet and confer declaration or a declaration "stating that
the petitioner has contacted the deponent to inquire about the
nonappearance." (CCP §2025.450(b).) Instead, Defendant states “Exhibit “D”
reflect(s) additional attempt(s) to contact Plaintiff(s) SALVADOR MENDOZA. So
far there has been no response to the attempt(s).” (Boyd Decl. ¶3.) Defendant attaches
an investigation report conducted by an investigation company attempting to
locate Salvador Mendoza, making several telephone attempts on September 28 and
30, October 1-3, 2023, and visiting his residence located 5524 Denker Ave., Los
Angeles, CA, 90062. (Boyd Decl., Ex. D.) According to the report, Plaintiff
often comes and goes at all hours and be frequently gone for a few days at a
time. It’s unclear whether Plaintiff has received the correspondence from
Defendant. The Court finds that the additional declaration does not state that
Defendant engaged in meaningful efforts to meet and confer with Plaintiff. Although Plaintiff did not appear for his
deposition and there is good cause to compel Defendant’s deposition, Defendant’s
counsel is required to meet the declaration requirements under CCP §
2025.450(b).
Accordingly, the motion to compel Plaintiff
to appear for deposition is CONTINUED. Defendant’s counsel is ordered to
re-file the declaration and set forth meaningful efforts to meet and confer
with Plaintiff in accordance with the requirements of CCP § 2025.450(b).
II. 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).)
Defendant requests monetary
sanctions in the amount of $750 for three (3) hours for preparing the instant
Motion and one (1) hour to appear at the hearing, at a rate of $170.00 per
hour, plus motion filing fees. (Boyd Decl. ¶ 13.)
Since the hearing on the Motion is continued, the Court
will address Defendant’s request for monetary sanctions at the next scheduled
hearing.
III. Conclusion
Moving party is ordered to give
notice.