Judge: Lee S. Arian, Case: 21STCV35565, Date: 2024-02-15 Tentative Ruling

Case Number: 21STCV35565    Hearing Date: February 15, 2024    Dept: 27

Tremere Mason, et al. v. Jose Luis Robledo, et al.

CASE NUMBER: 21STCV35565

[OPPOSED]

Motion – Motion to Compel Plaintiff’s Deposition and Request for Monetary Sanctions in the Amount of $1,600.00

TENTATIVE

            Defendant Robledo’s Motion to Compel Plaintiff’s Deposition and Request for Monetary Sanctions is GRANTED. The Court awards sanctions to Defendants and imposes them solely on Plaintiff Jeron Isaac Smith in the total amount of $1,660.00.

Background

            This case stems from an automobile accident that occurred on December 19, 2019 when Tremere Mason and Jeron Isaac Smith (collectively, Plaintiffs) were allegedly in a collision with Jose Luis Robledo, Leslie Pham Tran, and Morton Solomon (collectively Defendants). Plaintiffs filed a Complaint containing a single cause of action for motor vehicle negligence on September 28, 2021. Jose Luis Robledo (Defendant Robledo) now files the instant motion before the Court, a Motion to Compel Plaintiff Jeron Isaac Smith’s Deposition and Request for Monetary Sanctions in the Amount of $1,600.00 (Motion). Jeron Isaac Smith (Plaintiff Smith) files opposition papers. No reply was submitted.  

Discussion

Legal Standard

            A motion lies to compel deposition attendance and document production, after service of a deposition notice, where a deponent fails to appear at, or proceed with, a deposition, without having served a valid objection. (CCP §2025.450(a).) No meet and confer is required to compel initial deposition attendance, but instead there must be a declaration showing that moving party inquired about the nonappearance. (CCP §2025.450(b)(2).)  

            “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4^th 1109, 1124. See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).) 

Analysis

            In his moving papers, Defendant Robledo details that Plaintiff Smith’s deposition was rescheduled three separate times: first from December 28, 2022, to February 21, 2023, then from February 21, 2023, to March 30, 2023, and finally from March 30, 2023, to May 1, 2023. (Motion, 3:10-20.) Plaintiff Smith’s counsel stated they were not available for each date after being properly noticed, however, they failed to provide new dates each time. (Id.) On the final scheduled deposition date of May 1, 2023, Plaintiff Smith did not appear.

            In opposition, Plaintiffs’ counsel states they do not oppose the Motion. They contend they were just as surprised at Plaintiff Smith’s non-appearance as Defense counsel was. Indeed, the Affidavit Re Nonappearance of Witness notes that both Defense counsel and Plaintiff Smith’s counsel appeared. (Motion, Exh. G.) Plaintiffs’ counsel notes that they were under the impression Plaintiff Smith would appear. (Opposition Papers, 3:2-4.) As he did not, both parties agree that the Motion should be granted. Counsel for Plaintiffs however request that if sanctions be imposed, they be imposed solely on Plaintiff Smith, as Plaintiffs’ counsel took no action warranting sanctions. The Court agrees.

Sanctions

            “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” (CCP § 2023.030(a).) “Misuses of the discovery process include, but are not limited to, the following: (d) Failing to respond or to submit to an authorized method of discovery.” (CCP § 2023.010)

            Here, as the only party that engaged in misuse of the discovery process was Plaintiff Smith, sanctions will be imposed on Plaintiff Smith, and Plaintiff Smith alone. Defense counsel provides the following calculations:

·         Counsel’s hourly rate is $250.00

·         Counsel spent 3 hours preparing the Motion

·         Counsel spent 1 hour reviewing the Opposition Papers

·         Counsel anticipates the hearing will take 0.5 hours

·         The filing fee for the Motion was $60.00

·         The Court reporter fees were $475.00

·         This equates to $1,660.00 total

            The Court will award sanctions to Defendants and impose them solely on Plaintiff Jeron Isaac Smith in the total amount of $1,660.00.

Conclusion

            Accordingly, Defendant Robledo’s Motion to Compel Plaintiff’s Deposition and Request for Monetary Sanctions is GRANTED. The Court will award sanctions to Defendants and impose them solely on Plaintiff Jeron Isaac Smith in the total amount of $1,660.00.

Moving party is ordered to give notice.