Judge: Lee S. Arian, Case: 21STCV26998, Date: 2023-12-13 Tentative Ruling

Case Number: 21STCV26998    Hearing Date: December 13, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.                   INTRODUCTION

Alberto Valencia Barrera (“Plaintiff”) filed his complaint against Carolyn St. Clair (“Defendant”), and Does 1 through 20 on July 22, 2021, alleging injuries and damages arising out of an automobile accident that occurred on July 26, 2019.  

On November 2, 2023, Defendant filed her motion to compel Plaintiff’s attendance and testimony at deposition and for monetary sanctions against Plaintiff and his counsel in the amount of $911.65. Plaintiff filed his opposition on November 30, 2023.

II.                LEGAL STANDARD

Code of Civil Procedure § 2025.450(a) provides: 

“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).) 

“Any 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.” (Code Civ. Proc. § 2025.410(a).)

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.)

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).)

III.             DISCUSSION

Defendant seeks an order to compel Plaintiff’s attendance and testimony at deposition as well as monetary sanctions against Plaintiff and Plaintiff's counsel in the amount of $911.65.

Defendant served Plaintiff with a notice of taking deposition set for May 2, 2023. (Decl. Cadena, ¶ 3.) On April 28, 2023, Plaintiff requested the deposition be rescheduled to a date in June; counsels agreed to June 12, 2023. (Id., ¶ 4.) On May 4, 2023, Defendant served Plaintiff with a notice of taking deposition set for June 12, 2023. (Id., ¶ 6.) On June 8, 2023, Plaintiff’s counsel requested the deposition be rescheduled. (Id., ¶ 7.)  On June 20, 2023, Defendant served Plaintiff with a notice of taking deposition set for July 25, 2023. (Id., ¶ 8.) On July 24, 2023, Plaintiff’s counsel requested the deposition be rescheduled. (Id., ¶ 9.)  On August 1, 2023, Defendant served Plaintiff with a notice of taking deposition set for October 16, 2023. (Id., ¶ 10.)  On October 16, 2023, Plaintiff did not appear for the deposition. (Id., ¶ 11.)

Defendant met and conferred with Plaintiff’s counsel following Plaintiff’s nonappearance by email, requesting new dates for the deposition. (Motion, Exh. H.) As such, Defendant has met the requirement to meet and confer after a nonappearance.

Plaintiff argues that this motion is unnecessary as the deposition of Plaintiff was timely canceled on October 13, 2023, when Plaintiff’s counsel emailed Defendant’s counsel regarding a scheduling conflict and Plaintiff’s unavailability for October 16, 2023. (Decl. Godoy, ¶ 5; Exh. 1.)  Further, Plaintiff’s counsel attempted to reschedule the deposition of Plaintiff to November 8. (Id., ¶ 7.)  Through exchanged emails, Plaintiff’s counsel contends Plaintiff’s deposition is scheduled for December 21, 2023. (Id., ¶ 11.)  

The Court finds Defendant shows good cause to support her motion to compel. Plaintiff gave three-day notice of not being able to attend the deposition, however this appears to be a recurring pattern. While there is a deposition calendared for December 21, 2023, four have been noticed and rescheduled in the past, all at Plaintiff’s behest.  At this point, enough is enough. 

Therefore, Defendant’s motion to compel deposition of Plaintiff is GRANTED.  Plaintiff is hereby ordered to appear for his deposition as currently scheduled on December 21, 2023.

As to sanctions, Defendant requests sanctions against Plaintiff and Plaintiff’s counsel in the amount of $911.65. Defendant calculates these damages as follows: (1) $61.65 for court filing fees, (2) 2 hours of work drafting, filing, and presenting this motion at a rate of $250.00 per hour, $500.00 total, and $350.00 to cover the nonappearance fee with London Court Reporter. (Decl. Cadena, ¶ 16.)  The Court grants sanctions as requested in the amount of $911.65 against Plaintiff and Plaintiff’s counsel, jointly and severally.

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.

Dated this 13^th day of December, 2023