Judge Lee S. Arian, Case Number: 21STCV33596, Date: 2024-06-18 Tentative Ruling

Judge: Lee S. Arian, Case: 21STCV33596, Date: 2024-06-18 Tentative Ruling

Case Number: 21STCV33596 Hearing Date: June 18, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO COMPEL DEPOSITION; MOTION TO EXTEND TIME OF DEPOSITION; REQUESTS FOR SANCTIONS¿

Hearing Date: 6/18/24¿

CASE NO./NAME: 21STCV33596 JUAN OROZCO MORENO vs PECORARO, INC.

Moving Party: Defendant Pecoraro

Responding Party: Plaintiff¿

Notice: Sufficient¿

Ruling: MOTION TO COMPEL DEPOSITION AND EXTEND TIME AND REQUEST FOR SANCTIONS ARE GRANTED

Background

Defendant has taken Plaintiff’s deposition twice, the last of which was cut short by Plaintiff. Defendant requested Plaintiff’s third deposition, but Plaintiff refused until Defendant brought this motion to compel. Specifically, Defendant moves the Court to compel Plaintiff to attend his third deposition and to permit an additional five hours of deposition beyond the seven-hour time limit. Defendant also seeks sanctions of $2,260.

Legal Standard¿

Code Civ. Proc., § 2025.450

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Any party may obtain any discovery of information, documents, land, property, or electronically stored information so long as the discoverable matter is not privileged, is relevant to the subject matter and can lead one to admissible evidence.¿(Code Civ. Proc. § 2017.010.)¿¿¿¿¿¿

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Code Civ. Proc., § 2025.450¿provides in pertinent part the following:¿¿¿¿¿¿¿

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“(a) 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.¿¿¿¿¿¿

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(b) A motion under subdivision (a) shall comply with both of the following:¿¿¿¿¿¿

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(1) The motion shall 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.¿¿¿¿¿¿

(2) The motion 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.¿

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Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust.¿ (Code Civ. Proc., § 2025.450, subd. (g)(1).)¿ On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent.¿ (Code Civ. Proc., § 2025.450, subd. (g)(2).)¿

Code of Civil Procedure Section 2025.290

Code of Civil Procedure Section 2025.290 requires courts to allow additional time, beyond the seven-hour limit, to depose a witness, unless the court, in its discretion, determines that the deposition should be limited for some reason. (Certainteed Corporation v. Sup. Ct. (2014) 222 Cal.App.4th 1053, 1062.)¿¿

Code of Civil Procedure § 2025.290¿not only authorizes a judge to allow additional time to depose a witness in these circumstances, but requires the judge to do so, unless the judge determines that the deposition should be limited for another reason, such as the deponent's medical condition or to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, undue burden, or expense.¿(CCP § 2025.290(c);¿Certainteed, supra, 222¿CA4th¿at¿1062.)¿

Discussion

Plaintiff’s opposition argues that Defendant did not fulfill the meet and confer requirement prior to filing the motion. The Court disagrees. On April 11, 2024, Defendant requested Plaintiff’s counsel produce Plaintiff for a third session, but was met with Plaintiff’s response telling Defendant’s counsel to "file your motion." The email exchanges between counsel show that Defendant attempted to reach an informal resolution, but Plaintiff refused. The Court finds that Defendant has attempted to meet its meet and confer obligations prior to filing the present motion.

Substantively, Plaintiff contends that he agreed to allow Defendant to take a third deposition. However, that agreement occurred only after the motion to compel was filed and Plaintiff will allow Defendant only approximately one more hour of deposition time until the seven-hour limit is reached. The parties appear to be at an impasse regarding whether Defendant is entitled to five additional hours of deposition as requested by Defendant. Plaintiff maintains that Defendant is entitled to only the initial seven hours.

Plaintiff contends that this is not a complex case and seeks protection from re-deposing Plaintiff on matters already covered at length. However, given that Plaintiff is claiming in excess of $1 million in damages alleging traumatic brain injuries and requires a Spanish interpreter, which necessarily makes any deposition longer than one without an interpreter, the Court finds that Defendant’s request for an additional five hours is reasonable. No basis exists to limit the deposition. Accordingly, the motion to compel and to extend the time of deposition another 5 hours is granted. Plaintiff is to sit for such deposition in the next 20 days.

Defendant seeks sanctions of $2,260 on the basis that Plaintiff had no basis to stop the deposition and further that it had to bring a motion to compel to move forward with Plaintiff’s continued deposition. Having granted the motion to compel, the Court grants sanctions against Plaintiff and his counsel, jointly and severally, in the reasonable amount of $2,000, to be paid within 20 days of this order.

¿¿PLEASE TAKE NOTICE:¿

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If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿