Judge: Lisa R. Jaskol, Case: 22STCV28655, Date: 2023-08-24 Tentative Ruling
Case Number: 22STCV28655 Hearing Date: September 29, 2023 Dept: 28
This is the first of two matters on today's calendar. The second matter is addressed below.
I. Motion to compel Defendant's Deposition
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On September 1, 2022, Plaintiff John Berry (“Plaintiff”) filed this action against Defendants Daniel Sabzerou (“Defendant”) and Does 1-25 for motor vehicle negligence and general negligence.
On April 28, 2023, Defendant filed an answer.
On June 22, 2023, Plaintiff filed a motion to compel Defendant’s deposition to be heard on August 25, 2023. The Court continued the hearing on the motion to September 29, 2023.
Trial is currently scheduled for February 29, 2024.
PARTY’S REQUESTS
Plaintiff requests that the Court compel Defendant to appear for a deposition. Plaintiff also requests that the Court impose sanctions of $3,260.00 on Defendant.
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 . . . , 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.
* * *
(2) On motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party 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.”
(Code Civ. Proc., § 2025.450, subds. (a), (b), (g).)
“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
On April 18, 2023, Plaintiff noticed Defendant’s deposition for May 17, 2023. Defendant did not file any objections to the deposition notice before the deposition date. On May 16, 2023, Plaintiff’s counsel contacted Defendant’s counsel to confirm the deposition. Defendant’s counsel stated that Defendant would not appear for the deposition because counsel had a pre-existing conflict. Plaintiff requested that Defendant provide new deposition dates. Defendant had not provided new deposition dates by the time Plaintiff filed this motion.
The Court grants the motion. After learning that Defendant would not appear for his scheduled deposition, Plaintiff’s counsel attempted to meet and confer with Defendant’s counsel to schedule a new deposition date but did not receive a response.
Plaintiff requests $2,360.00 in sanctions based on 8 hours of attorney’s work at a rate of $400.00 per hour and 1 $60.00 filing fee. Counsel spent 3 hours to draft the motion and anticipated spending 3 hours to prepare a reply and 2 hours to attend the hearing. The motion is unopposed. The Court grants $560.00 in sanctions, based on 2 hours of attorney’s work at a reasonable rate of $250.00 per hour and 1 filing fee.
CONCLUSION
The Court GRANTS Plaintiff John Berry’s motion to compel the deposition of Defendant Daniel Sabzerou. Defendant is ordered to appear for a deposition within 30 days of the hearing on this motion.
The Court GRANTS Plaintiff John Berry’s request for sanctions. Defendant Daniel Sabzerou and Defendant's counsel are ordered to pay Plaintiff $560.00 in sanctions within 30 days of the 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.
II. Additional discovery motions
Having
reviewed Plaintiff’s unopposed motions to compel responses to form interrogatories,
special interrogatories and request for production of documents, and to deem request
for admissions admitted, the Court rules as follows.
On
December 14, 2022, Plaintiff served Form Interrogatories, Set No.
One, Special Interrogatories, Set No. One, Request for Production of Documents,
Set No. One, and Request for Admissions, Set One, on Defendant.
On April 28, 2023, Plaintiff served Form Interrogatories, Set No.
Two, on Defendant.
Defendant failed to provide responses to the discovery requests.
Plaintiff now moves to compel code-compliant responses and deem admitted
the matters specified in the requests for admissions.
The
Court GRANTS Plaintiff's motions to compel responses to the form and special
interrogatories under Code of Civil Procedure section 2030.290, subdivision (b)
and orders Defendant to provide verified responses to the
interrogatories compliant with Code of Civil Procedure sections 2030.210,
subdivision (a) and 2030.220 without objections by October 29, 2023.
The
Court GRANTS Plaintiff's motion to deem admitted the matters specified in the requests
for admission under Code of Civil Procedure section 2033.280 and deems the matters
specified in the requests admitted.
The
Court GRANTS Plaintiff's motion to compel responses to the request for production of documents
under Code of Civil Procedure section 2031.300 and orders Defendant to provide verified responses compliant with Code of Civil Procedure
section 2031.210 and to produce the documents, electronically stored
information, and/or other things requested without objections by October 29,
2023.
Plaintiff requests monetary sanctions of $2,860.00 for the request for
admissions and $2,860.00 for the request for production based on 7 hours of
attorney’s work at a rate of $400.00 per hour and 1 $60.00 filing fee for each
motion. Plaintiff's counsel spent 2 hours drafting
each motion and anticipated spending 3 hours to prepare a reply and 2 hours to
attend the hearing.
Plaintiff
requests $4,060.00 for the motion to compel responses to the interrogatories
based on 10 hours of attorney’s work at a rate of $400.00 per hour and 1 $60.00
filing fee. Plaintiff's counsel spent 5 hours drafting
the motion and anticipated spending 3 hours to prepare a reply and 2 hours to
attend the hearing.
Plaintiff
should have filed the motion to compel responses to the interrogatories as
three separate motions. Therefore, Plaintiff
must pay two additional filing fees.
The
motions are substantially similar, they are unopposed, and they will be heard
together. The Court awards sanctions of $1,300 for all the motions based on 4 hours of attorney’s work at a reasonable rate of
$250 per hour and 5 filing fees. (See
Code Civ. Proc., §§ 2023.030, subd. (a), 2030.290,
subd. (c), 2033.280, subd. (c), 2031.300, subd. (c).)
The
Court GRANTS Plaintiff John Berry’s request for sanctions and orders Defendant
Daniel Sabzerou and his counsel to pay Plaintiff $1,300.00 in sanctions by
October 29, 2023.
Plaintiff John Berry is ordered to pay 2 additional $60.00 filing fees to the Court.
Moving
party is to give notice of this ruling.