Judge Lee W. Tsao, Case Number: 21NWCV00540, Date: 2023-10-11 Tentative Ruling

Judge: Lee W. Tsao, Case: 21NWCV00540, Date: 2023-10-11 Tentative Ruling

Case Number: 21NWCV00540 Hearing Date: March 19, 2024 Dept: C

Xiomara Varela Mendoza vs Interinsurance Exchange of the Automobile Club, Inc.

Case No.: 21NWCV00540

Hearing Date: March 19, 2024 @ 9:30 AM

Tentative Ruling

Defendant Interinsurance Exchange of the Automobile Club, Inc.’s Motion to Compel Deposition of Plaintiff is GRANTED. Sanctions are GRANTED in the reduced total amount of $690.00.

Defendant to give notice.

Defendant Interinsurance Exchange of the Automobile Club, Inc. (“Defendant”) moves to compel the deposition of Plaintiff Xiomara Varela Mendoza (“Plaintiff”) pursuant to CCP § 2025.450.

As of March 15, 2024, no opposition has been filed.

Background

Plaintiff’s vehicle was stolen in October 2020. Plaintiff sues the insurer for (1) Breach of Insurance Contract, (2) Bad Faith Breach of Implied Covenant of Good Faith and Fair Dealing and (3) Declaratory Relief.

Legal Standards

CCP¿section¿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 . . . 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 . . . described in the deposition notice.”¿ (Code Civ. Proc., § 2025.450(a).)¿

Discussion

Plaintiff’s deposition had previously been noticed and set for November 13, 2023 and November 17, 2023 after meet and confer attempts with Plaintiff’s counsel. (Bridwell Decl., ¶ 4, Exhibits A-D.) The Second Amended Notice of Taking Deposition of Plaintiff Upon Oral Examination set the deposition for December 1, 2023 at 10:00 a.m. (Bridwell Decl., ¶ 4, Exhibits C.) Plaintiff failed to appear and Defendant received a Certificate of Non-Appearance. (Bridwell Decl., ¶ 4, Exhibits D.)

Defendant now seeks an order to compel Plaintiff to appear at deposition within fifteen days of the order.

Given that Plaintiff has not attended any of the prior properly noticed depositions, the Court finds good cause to grant the motion to compel.

Accordingly, the Court compels deposition of Plaintiff within 30 days of this order.

Sanctions

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under… in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2025.450(g)(1).)

Here, Plaintiff has not opposed the motion. Therefore, the Court does not find there is a substantial justification for not appearing at the deposition.

Defendant requests $1,500.00 in sanctions (three hours preparing the motion, two hours analyzing and responding to a potential Opposition, three hours preparing for and appearing for the hearing on the Motion to Compel at a rate of $180 an hour, and a $60.00 for reimbursement of filing fees.)

Taking into consideration the lack of opposition, the Court awards sanctions in the reduced amount of $690.00 (three hours preparing the motion and a half hour appearing at the hearing at $180.00 per hour, as well as a reimbursement of the $60.00 filing fee).