Judge: Lee W. Tsao, Case: 23NWCV00329, Date: 2024-11-06 Tentative Ruling

Case Number: 23NWCV00329    Hearing Date: November 6, 2024    Dept: C

SHAH, et al. v. CHAVEZ, et al.

CASE NO.:  23NWCV00329

HEARING:  11/06/2024

#4

TENATIVE ORDER

Defendants J.R. Republic and Manuel Angel Molina Chavez’s Motion to Compel Plaintiff Syed Shah’s Deposition is GRANTED. Plaintiff Syed Shah is ordered to appear for deposition within 30 days of this order.

Defendant’s Request for Sanctions is GRANTED in part. Plaintiff Syed Shah is ordered to pay Defendants’ counsel sanctions in the amount of $1,005 within 30 days of this order.

Moving Party to give Notice.

This personal injury action was filed by Plaintiffs Syed Fakhar Shah, Muhammad Shah, and Syeda Quratulain on January 31, 2023, against Defendants J.R. Republic and Manuel Angel Molina Chavez. The complaint alleges four causes of action for: (1) negligence, (2) negligence per se, (3) negligent entrustment, and (4) negligent hiring, supervision and retention, and arises out of a vehicle collision.

Defendants move to compel Plaintiff Shah’s deposition and request sanctions. Plaintiff Shah’s counsel has filed a declaration in opposition.

CCP section¿2025.450(a) provides:¿“If, after service of a deposition notice, a party to the action . . . , 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).) 

CCP section¿2025.450(b) provides:¿“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.”¿ (Id., § 2025.450(b).) 

Defendants’ counsel originally noticed Plaintiff Shah’s deposition on March 16, 2023, to be taken remotely on June 16, 2023. (Renaud Decl. ¶ 4, Exh. A.) On June 7, 2023, Plaintiffs’ counsel objected to the deposition of Plaintiff Shah set for June 16, 2023. (Renaud Decl. ¶ 5, Exh. B.) On August 7, 2023, Plaintiffs’ counsel advised Defendants’ counsel that Plaintiff Shah would be available for deposition on September 25, 27, and 28 and that he would require a conference room. (Renaud Decl. ¶ 8, Exh. E.) On August 8, 2023, Defendants served their Second Notice of Deposition of Plaintiff Shah set for September 25, 2023. (Renaud Decl. ¶ 9, Exh. F.)

On August 10, 2023, Plaintiffs’ counsel advised that Plaintiff Shah lives in Bakersfield and cannot attend the in-person deposition on September 25, 2023, in Long Beach, California. (Renaud Decl. ¶ 10, Exh. G.) On August 17, 2023, Defendants served their Third Notice of Deposition of Plaintiff Shah set in person in Bakersfield on September 25, 2023, pursuant to Plaintiffs’ request. (Renaud Decl. ¶ 11, Exh. H.) On September 22, 2023, Plaintiffs’ counsel emailed Defendants’ counsel and advised that his client was no longer available for his deposition on September 25, 2023. (Renaud Decl. ¶ 12, Exh. I.)

On September 26, 2023, Plaintiffs’ counsel provided additional dates for Plaintiff Shah in October 2023. (Id.) Defendants then served a Fourth Notice of Taking Deposition of Plaintiff Shah on September 27, 2023 to take place on October 20, 2023. (Renaud Decl. ¶ 13, Exhibit “J”.) Plaintiff Shah once again canceled the deposition the day before. (Renaud Decl. ¶ 14, Exh. K.)

On April 30, 2024, Defendants’ counsel made one last effort to obtain a date before filing this motion. (Renaud Decl. ¶ 21, Exh. R.) No response was ever forthcoming.

As Plaintiff was properly served with the notice of deposition, did not object under CCP section 2025.410, and failed to proceed with the deposition, the motion to compel Plaintiff to appear for deposition is GRANTED.  Plaintiff is ordered to appear for deposition within 30 days of this order.

Sanctions

If a motion under CCP section¿2025.450(a) is granted, the court shall impose a monetary sanction 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 section¿2025.450(g)(1).)

Defendants request sanctions against Plaintiff and counsel of record in the amount of $1,282.50, which consists of $185 for Defendants’ counsel’s hourly rate, for 4.5 hours, $450 for the late cancelation. (See Renaud Decl., ¶ 23, Exh. S.) 

As the motion to compel Plaintiff’s deposition is granted, Defendant’s request for sanctions is granted in part. Plaintiff’s counsel has filed a declaration stating that despite attempts at contacting Plaintiff, he has been unable to locate Plaintiff. (Mosley Decl., ¶ 4.) As such, Plaintiff’s counsel has provided substantial justification for the failure to proceed with Plaintiff’s deposition, however, Plaintiff has not. Thus, the Court imposes sanctions against Plaintiff and in favor of Defendants, in the reduced amount of $1,005 ($185 per hour for 3 hours, plus $450 cancelation fee), to be paid within 30 days of this order.