Judge: Lee S. Arian, Case: 22STCV30547, Date: 2023-11-07 Tentative Ruling
Case Number: 22STCV30547 Hearing Date: March 19, 2024 Dept: 27
Complaint Filed: 9/19/22
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Hon. Lee S. Arian¿¿¿¿¿¿
Department 27¿¿¿¿¿¿
Tentative Ruling¿¿¿¿¿¿
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Hearing Date: 3/19/2024 at 1:30 p.m.¿¿¿¿¿¿
Case No./Name: 22STCV30547 ROBERT WILLIAMSON vs
GLS US FREIGHT, INC
Motion: MOTION TO COMPEL DEPOSITION OF
DEFENDANT FRANCISCO ESCALANTE AND FOR SANCTIONS
Moving Party: Plaintiff¿
Responding Party: Defendants
Notice: Sufficient¿¿¿¿¿¿
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Ruling: MOTION TO COMPEL DEPOSITION OF
DEFENDANT FRANCISCO ESCALANTE IS GRANTED.
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¿ REQUEST FOR SANCTIONS IS GRANTED.
Background
On September 19, 2022, Plaintiff filed the
present case, alleging Defendant Francisco Escalante's negligent operation of a
forklift caused Plaintiff injuries. On March 10, 2023, Plaintiff first
requested Defendant Francisco Escalante's availability, then noticed his
deposition on March 24, 2023, after not hearing from defense counsel. Defendant
did not serve a written objection to the notice of deposition. On March 29,
2023, Defendant’s counsel emailed Plaintiff's counsel stating Escalante is
unavailable. When asked by Plaintiff about Defendant Escalante's availability,
Defendant’s counsel ignored Plaintiff's requests. On May 25, 2023, Plaintiff
filed the present motion to compel Escalante’s deposition.
Defendant argues that since Plaintiff filed
his motion, Defendant attempted to meet and confer with Plaintiff and even
tried to produce Defendant Escalante for a deposition in November 2023 on a Saturday,
but Plaintiff refused. Since then,
Defendant’s counsel has apparently lost contact with Defendant, but counsel has
made no affirmative efforts to address the issue, such as through a motion to
withdraw.
Legal Standard
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.)¿¿¿
¿¿¿
Code Civ. Proc., § 2025.450¿provides in pertinent part the
following:¿¿¿¿
¿¿¿
“(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.¿¿¿
¿
(b) A motion
under subdivision (a) shall comply with both of the following:
(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¿
Analysis
Defendant
does not dispute that on March 24, 2023, Plaintiff
noticed Escalante's deposition for April 18, 2024, or that no written objection
was served to the notice of deposition, or that Escalante did not attend the
deposition on April 18, 2024. Defendant's argument is that its counsel was not
able to establish contact with Escalante and when he did in November of 2023, he
made Escalante's availability known, but Plaintiff refused to conduct the
deposition. In reply, Plaintiff argues that while Defendant offered Escalante's
availability for a deposition, Defendant also offered to stipulate to
liability, thereby making the deposition unnecessary. However, Defendant thereafter
refused to fully stipulate after Escalante was no longer available.
Plaintiff has met all the requirements to move the
court to compel deposition under § 2025.450, which provides for an order to
compel attendance and testimony when a party to the action notices a deposition
and, without having served a valid objection under Section 2025.410, the other
party fails to appear for examination, or to proceed with it. Furthermore, Defendant does not dispute that
good cause is shown under § 2025.450(b)(1) as Escalante is allegedly the
individual that caused Plaintiff's injuries. Defendant's argument might be
relevant to § 2025.450(b)(2), as Defendant calls Plaintiff's good faith meet
and confer efforts into question. Both parties presented evidence that neither
side is now meeting and conferring in good faith, but the fact is that the parties
have been meeting and conferring for over a year through various mediums since
the notice was served in March 2023. A deposition still has not been scheduled
a year later when the trial date is set for June 10, 2024. It is clear that
whatever method the parties are using to resolve the issue of deposition, it
has been ineffective and, at this point, it is appropriate for the Court to
intervene and order the deposition, with potential contempt implications for
witness Escalante.
The Court finds that Plaintiff fulfilled the
necessary requirements of § 2025.450 for a motion to compel. Therefore, the
motion is GRANTED and Escalante is ordered to appear for deposition within 20
days of today's date or such later date as agreed by the parties.
Sanctions
Plaintiff was required to incur attorney’s fees in
bringing forth the present motion. Plaintiff requests $6947.50 in sanctions. The
Court exercises its discretion and lowers the sanction to $2000 given the
issues raised in the Opposition. Defendant Escalante and his counsel are ORDERED, jointly and severally, to
pay sanctions of $2000 to Plaintiff within 20 days of today’s date.
¿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.¿¿¿¿¿¿¿¿¿
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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.¿¿¿¿¿¿¿¿¿
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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.¿¿¿¿¿¿¿¿