Judge: Lee S. Arian, Case: 23STCV03843, Date: 2024-04-03 Tentative Ruling

Case Number: 23STCV03843    Hearing Date: April 3, 2024    Dept: 27

Hon. Lee S. Arian 

Department 27 

Tentative Ruling 

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Hearing Date:           4/3/2024 at 1:30 p.m. 

Case No./Name.:      23STCV03843 ALLSTATE NORTHBROOK vs EDVIN FRANCISCO HERNANDEZ 

Motion Name:           MOTION TO COMPEL DEPOSITION 

Moving Party:           Plaintiff Allstate Northbrook Indemnity Company 

Responding Party:    Defendant Edvin Francisco Hernandez Chivalan

Notice:                     Sufficient 

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Ruling:                     MOTION TO COMPEL DEPOSITION IS GRANTED 

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.)¿¿¿¿¿ 

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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 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. 

Factual Background and Analysis

On February 22, 2021, Defendant Edvin Francisco Hernandez Chivalan was involved in a collision with an underinsured motorist. Defendant and Plaintiff, Allstate Northbrook Indemnity Company, are in arbitration relating to the underlying UIM claim. On February 22, 2023, Plaintiff Allstate filed a complaint in interpleader against Defendant Hernandez. On November 6, 2023, Plaintiff noticed Defendant's deposition for December 7, 2023. On December 6, 2023, the parties corresponded, and Defendant’s counsel confirmed that Hernandez would be appearing for his deposition the next day on December 7, 2023. However, on that scheduled deposition date, Defendant Hernandez failed to appear, leading Plaintiff to obtain an affidavit of non-appearance. Plaintiff then attempted to meet and confer with Defendant’s counsel regarding Hernandez’s non-appearance and to seek alternative deposition dates; Defendant’s counsel failed to respond. Consequently, Plaintiff now moves the Court to compel Defendant’s deposition. Defendant did not file an opposition.

        It is undisputed that Plaintiff noticed Defendant's deposition for December 7, 2023, and Defendant did not file an objection. Furthermore, Defendant's counsel confirmed that Defendant would attend his deposition the day before the deposition. However, Defendant Hernandez did not appear for his deposition.

        Plaintiff attempted to meet and confer to secure alternative dates for Hernandez's deposition, but these attempts were unsuccessful. Plaintiff has met all the requirements to compel Defendant’s deposition. Thus, the present motion is GRANTED and Defendant Hernandez is hereby ORDERED to appear for his deposition within 20 days of today.

Sanctions 

Defendant’s failure to attend his deposition forced Plaintiff to incur attorney's fees to file the present motion. Plaintiff requests attorneys' fees in the amount of $886.65, and the Court finds this amount reasonable. Defendant and his counsel are ORDERED, jointly and severally, to pay sanctions of $886.65 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.     

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.