Judge: Lisa R. Jaskol, Case: 20STCV36965, Date: 2023-10-18 Tentative Ruling

Case Number: 20STCV36965    Hearing Date: October 18, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On September 28, 2020, Plaintiff Steve Stucker (“Plaintiff”) filed this action against Defendants Jose Alberto Alonso Gonzalez, Jimenez Demolition, Inc., and Does 1-100 for motor vehicle tort and general negligence. 

On July 25, 2022, Defendant Jimenez Demolition, Inc. filed an answer. On December 16, 2022, Defendant Jose Alberto Alonso Gonzalez filed an answer. 

On September 20, 2023, Defendants Jose Alberto Alonso Gonzalez and Jimenez Demolition, Inc. (“Defendants”) filed a motion to compel Plaintiff's deposition and for sanctions, to be heard on October 18, 2023.  Plaintiff has not filed an opposition. 

Trial is currently scheduled for February 7, 2024. 

PARTIES’ REQUESTS 

Defendants request that the Court compel Plaintiff to appear for a deposition. Defendants also request that the Court impose sanctions of $1,113.65. 

LEGAL STANDARD 

“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, 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.”  (Code Civ. Proc., § 2025.450, subd. (a).) 

A motion under Code of Civil Procedure section 2025.450, 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, 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 the petitioner has contacted the deponent to inquire about the nonappearance.”  (Code Civ. Proc., § 2025.450, subd. (b).)  

Code of Civil Procedure section 2025.450, subdivision (g)(1), provides that if the court grants a motion made under 2025.450, 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. 

“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. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc., § 2023.030, subd. (a).) 

Misuse of the discovery process includes "[f]ailing to respond or to submit to an authorized method of discovery" and "[m]aking or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (h).) 

DISCUSSION 

Defendants assert the following: 

On March 28, 2023, Defendants noticed Plaintiff’s deposition for April 25, 2023.  On April 7, 2023, Plaintiff’s counsel advised that he was not available on April 25 and provided alternative dates.  Counsel agreed on May 16, 2023.  Defendants’ counsel served a deposition notice for May 16, 2023. 

On May 12, 2023, Plaintiff’s counsel advised that he was not available on May 16.  On May 26, 2023, Defendants’ counsel provided alternative dates for Plaintiff’s deposition. Plaintiff’s counsel did not respond.  On June 1, 2023, Defendants’ counsel sent a follow up email to Plaintiff’s counsel requesting deposition dates. Plaintiff’s counsel did not respond. On June 19, 2023, Defendants’ counsel sent another follow up email to Plaintiff’s counsel requesting deposition dates and also sent a stipulation to continue trial.  Plaintiff’s counsel did not respond. 

On June 21, 2023, Defendants’ counsel noticed Plaintiff’s deposition for July 19, 2023.  Plaintiff did not serve an objection.  On June 27, 2023, Defendants’ counsel sent a follow up email to Plaintiff’s counsel regarding the stipulation to continue trial and confirming the deposition date of July 19, 2023.  Plaintiff’s counsel did not respond. 

On July 12, 2023, Defendants’ counsel called Plaintiff’s counsel and left a voice message and also sent another follow up email to Plaintiff’s counsel regarding the stipulation to continue trial and the July 19, 2023 deposition date.  Plaintiff’s counsel did not respond. 

On July 18, 2023, Defendants’ counsel sent another follow up email to Plaintiff’s counsel.  Plaintiff’s counsel responded via email with a signed stipulation to continue trial. Plaintiff’s counsel also advised that due to a conflict, the deposition set for the following day (July 19) would need to be rescheduled.  The court reporting service waived the late cancellation fee as a courtesy. 

On August 18, 2023, Defendants noticed Plaintiff’s deposition for August 31, 2023.  Plaintiff did not serve an objection to the deposition notice.  On August 30, 2023, the day before the deposition, Plaintiff’s counsel advised that the deposition would need to be rescheduled because counsel was out of state for a convention.  The court reporting service charged Defendants a $72 late cancellation fee. 

On September 5, 2023, Defendants’ counsel emailed Plaintiff’s counsel requesting dates for Plaintiff’s deposition.  Plaintiff’s counsel did not respond. 

On September 13, 2023, Defendants’ counsel emailed Plaintiff’s counsel advising that a motion to compel Plaintiff’s deposition and request for sanctions was scheduled for hearing on October 18, 2023. 

 Based on these undisputed facts, the Court finds good cause and grants the motion to compel Plaintiff to attend a deposition. 

Defendants are entitled to sanctions against Plaintiff and counsel for misuse of the discovery process in failing to attend or cooperate in scheduling Plaintiff’s deposition.  Defendants request sanctions of $1,113.65 based on four hours of attorney’s work at a rate of $245.00 per hour, one $72.00 late cancellation fee and one $61.65 filling fee. Counsel spent three hours to prepare the motion and anticipates spending one hour to appear at the hearing. 

The Court imposes $868.65 in sanctions based on three hours of attorney time, one $72.00 late cancellation fee, and one $61.65 filing fee. 

CONCLUSION 

The Court GRANTS the motion to compel the deposition of Plaintiff Steve Stucker filed by Defendants Jose Alberto Alonso Gonzalez and Jimenez Demolition, Inc.  Plaintiff is ordered to appear for a deposition within 30 days of the hearing on this motion. 

The Court GRANTS the request for sanctions of Defendants Jose Alberto Alonso Gonzalez and Jimenez Demolition, Inc.  Plaintiff Steve Stucker and Plaintiff's counsel are ordered to pay Defendants $868.65 in sanctions within 30 days of the hearing on this motion. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file proof of service of this ruling with the Court within five days.