Judge: Lisa R. Jaskol, Case: 21STCV37024, Date: 2023-08-09 Tentative Ruling
Case Number: 21STCV37024 Hearing Date: August 29, 2023 Dept: 28
Having considered the moving, opposing, reply, and supplemental papers, the Court rules as follows.
BACKGROUND
On October 7, 2021, Plaintiff Victoria Valles (“Plaintiff”) filed this action against Defendant Starbucks Corporation (“Defendant”) for general negligence, negligence per se, premises liability and negligent infliction of emotional distress.
On June 6, 2022, Defendant filed an answer.
On June 29, 2023, Defendant filed a motion to compel Plaintiff’s deposition to be heard on August 9, 2023. On July 25, 2023, Plaintiff filed an opposition. On August 2, 2023, Defendant filed a reply.
On August 9, 2023, the Court continued the hearing to August 29, 2023, and ordered the parties to file supplemental declarations addressing the status of Plaintiff’s deposition by August 23, 2023.
On August 23, 2023, Defendant filed a supplemental declaration stating Plaintiff appeared for her deposition on August 10, 2023. Defendant stated that while the Court no longer needed to rule on the motion to compel, the Court should grant Defendant’s request for sanctions.
Trial is currently scheduled for April 3, 2024.
PARTIES’ REQUESTS
Defendant requests that the Court impose sanctions of $2,263.75 on Plaintiff.
Plaintiff requests that the Court deny the motion.
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 a
motion made under 2025.450 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.
“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
Defendant noticed Plaintiff’s deposition for October 12, 2022. Defendant later took this deposition off calendar. (Declaration of Samuel Baxter (Baxter Dec.) ¶ 4.) Defendant’s counsel met and conferred with Plaintiff’s counsel and sought Plaintiff’s availability for her rescheduled deposition. (Baxter Dec. ¶ 5.)
On February 17, 2023, Defendant served Plaintiff’s counsel with an amended notice of deposition setting Plaintiff’s deposition for April 4, 2023. (Baxter Dec. ¶ 5 & Exh. B.) An amended notice of deposition with a proof of service is attached to Defendant’s counsel’s declaration as Exhibit B. (Baxter Dec. ¶ 5 & Exh. B.)
Plaintiff did not serve any objections to the amended deposition notice and Plaintiff’s counsel did not advise Defendant’s counsel that Plaintiff was unavailable or ask to reschedule the April 4, 2023 deposition. On March 30, 2023, Defendant’s counsel sent an email to Plaintiff’s counsel reminding him of the deposition of Plaintiff set for April 4, 2023 and asking for confirmation. Plaintiff’s counsel never replied to the email and did not contact Defendant’s counsel about Plaintiff’s upcoming deposition. (Baxter Dec. ¶ 6.)
Plaintiff did not appear for her deposition on April 4, 2023. (Baxter Dec. ¶ 7.) On June 29, 2023, Defendant filed this motion to compel.
In opposition to the motion, Plaintiff’s counsel asserts he did not know about the April deposition because the notice was part of “a chain of emails regarding other discovery matters that parties were discussing.” This assertion is difficult to square with Defendant’s Ex. B, which includes an e-mail whose attachment is labeled “2023-02-17 VALLES – SBX Amended Depo Ntc w Docs –Ptf.pdf.” The text of the email states “Attached please find Starbucks Corporation’s amended notice for plaintiff’s deposition on April 4, 2023, in the above matter.” Ex. D is another email, dated March 30, 2023, reminding Plaintiff’s counsel of the upcoming deposition.
The Court continued the August 9, 2023 hearing on the motion to August 29, 2023 because the parties had agreed that Plaintiff’s deposition would take place on August 10, 2023. The Court stated that if Plaintiff’s deposition took place as planned on August 10, the Court would rule only on the sanctions request.
On
August 10, 2023, Plaintiff’s deposition took place. The Court therefore finds the motion to
compel is moot but the Court grants sanctions for misuse of the discovery process
because Defendant was required to file a motion to compel.
Defendant requests sanctions totaling $2,263.75 based on 8 hours of attorney’s work at a rate of $210.00 per hour, $583.75 for the court reporter and non-appearance fee, and the $60.00 filling fee. The attorney work consists of 5 hours preparing the motion, supporting papers, and exhibits, 1 hour to review Plaintiff's opposition, 1.5 hours to prepare a reply, and 0.5 hours to prepare for and attend the hearing on the motion.
The Court grants sanctions totaling $1,693.75, based on 5 hours of attorney’s work and the associated fees.
CONCLUSION
The Court DENIES as moot Defendant Starbucks Corporation’s motion to compel the deposition of Plaintiff Victoria Valles.
The Court GRANTS Defendant Starbucks Corporation’s request for sanctions and orders Plaintiff and Plaintiff’s counsel to pay Defendant $1,693.75 in sanctions within 30 days of the continued hearing on the 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.