Judge: Lisa R. Jaskol, Case: 21STCV16083, Date: 2024-05-31 Tentative Ruling
Case Number: 21STCV16083 Hearing Date: May 31, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On April 28, 2021, Plaintiffs Aristides Perez (“Perez”), Jermy Villalta, and Jonathan Villalta filed this action against Defendants Sherri Finn (“Sherri Finn”) and Does 1-50 for negligence. On December 6, 2022, Plaintiffs amended the complaint to include Defendant Jacob Michael Finn (“Jacob Finn”) as Doe 1.
On February 15, 2023, the Court granted Sherri Finn’s motion to strike and struck the punitive damage claim from Plaintiffs’ statement of damages without leave to amend. The Court overruled Sherri Finn’s demurrer.
On March 10, 2023, Sherri Finn filed an answer. On June 23, 2023, Jacob Finn filed an answer.
On July 18, 2023, the Court dismissed Sherri Finn with prejudice at Plaintiffs’ request.
On December 22, 2023, Jacob Finn filed a motion to compel Perez’s attendance at a deposition and production of documents, to be heard on March 22, 2024. The Court continued the hearing to May 31, 2024. Perez has not filed an opposition.
Trial is currently scheduled for July 17, 2024.
PARTY’S REQUESTS
Jacob Finn asks the Court to compel Perez to attend a deposition and produce documents. Jacob Finn also asks the Court to impose sanctions on Perez.
LEGAL STANDARD
Code of Civil Procedure section 2025.450 provides in part:
“(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, 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.
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(Code Civ. Proc., § 2025.450, subds. (a), (b), (g)(1).)
DISCUSSION
On October 23, 2023, Jacob Finn noticed Perez’s deposition for November 14, 2023. Counsel met and conferred and agreed to move the deposition to December 19, 2023. On October 31, 2023, Jacob Finn served an amended notice setting Perez’s deposition on December 19, 2023.
On December 14, 2024, at Perez’s counsel’s request, Jacob Finn’s counsel agreed to change the location of the deposition. Jacob Finn served a second amended deposition notice reflecting the new location. The deposition notice stated in part:
“NOTICE IS FURTHER GIVEN that in the event the Deponent cancels their Deposition less than seventy-two (72) hours in advance of the Deposition (as scheduled herein or as alternatively stipulated) or Deponent fails to appear at the Deposition without prior notice, said Deponent shall be responsible for any late cancellation fees assessed by any court reporters, interpreters, videographers or otherwise and shall remit payment of the same to the attorneys for the party serving this Notice within ten (10) days of service of written notice of the accrual of any such fees.”
Perez did not serve objections to the deposition notices served on October 23, October 31, and December 14, 2023.
On December 18, 2023, less than 24 hours before the scheduled deposition, Perez’s counsel cancelled the deposition. Perez did not appear for the December 19, 2023 deposition or provide the documents requested in the deposition notice. Due to the late cancellation, Jacob Finn incurred costs for the interpreter, videographer, and court reporter retained for the deposition.
On December 19, 2023, Jacob Finn’s counsel attempted to meet and confer with Perez’s counsel to reschedule the deposition in January 2024. Perez’s counsel did not respond to the attempt to meet and confer.
Based on these undisputed facts, the Court finds good cause to grant the motion. The Court orders Perez to appear for a deposition and provide responsive documents within 30 days of the hearing on the motion.
Jacob Finn asks the Court to award $4,865.65 in sanctions, consisting of $3,444.00 for attorney time, $1,360.00 in fees for the interpreter, videographer and court reporter, and one $61.65 filing fee. Jacob Finn does not state the amount of time his attorney spent preparing this motion or the attorney’s billable rate.
The Court grants $2,171.65 in sanctions based on three hours of attorney time at a reasonable rate of $250.00 per hour ($750.00), fees for the interpreter, videographer, and court reporter ($1,360.00), and a filing fee ($61.65).
CONCLUSION
The Court GRANTS Defendant Jacob Michael Finn’s motion to compel Plaintiff Aristides Perez’s deposition and orders Plaintiff Aristides Perez to appear for a deposition and provide responsive documents within 30 days of the hearing on this motion.
The
Court GRANTS Defendant Jacob Michael Finn’s request for sanctions and orders
Plaintiff Aristides Perez and his counsel to pay Defendant Jacob Michael Finn $2,171.65 within 30 days of the hearing on
this motion.
Moving
party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.