Judge: Lynne M. Hobbs, Case: 22STCV13071, Date: 2023-11-30 Tentative Ruling

Case Number: 22STCV13071    Hearing Date: November 30, 2023    Dept: 30

JOSE DELACRUZ, JR., et al. vs MANUEL GALLARDO, JR., et al.

Motion to Compel Further Deposition

TENTATIVE

Defendant’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff is ordered to appear for deposition within 20 days of this order. Defendant’s request for monetary sanctions is GRANTED. Plaintiff Lourdes Roldan is ordered to pay monetary sanctions in the amount of $965 to Defendant within 20 days of this order.  Moving party to give notice.

Discussion

Defendant moves to compel a second session of Plaintiff Lourdes’ deposition. Volume I of Lourdes’s videotaped Zoom deposition went forward on July 18, 2023. (Rechberg Decl. ¶ 12.) However, Lourdes ended her deposition before it was complete due to insufficient phone battery. (Id.) Her total estimated testimony time, excluding breaks, lasted 3 hours and 27 minutes I – and she requested multiple breaks so she could pick up her teenage child at the doctor and take her home mid-deposition. (Id.) All counsel agreed on the record that Lourdes’ deposition would be continued so that the remainder of her testimony could be completed. (Id.) Thereafter, counsel agreed that Volume II of Lourdes’s deposition would take place on August 22, 2023. (Id., ¶ 13, Exh. 10.)

On August 22, 2023, and at the time the deposition was scheduled to begin, Lourdes failed to appear, despite the appearance of her counsel and all other parties to the action. (Id., ¶ 14.) Counsel for the Pantoja Defendants took a Certificate of Nonappearance, accordingly. (Id., ¶ 14; Exh. 11.) Counsel for the Pantoja Defendants has made multiple attempts to meet and confer with Plaintiffs’ counsel to get a new date for Vol. II of Lourdes’s deposition and has received no response. (Id., ¶ 15; Exh. 12.) The Pantoja Defendants incurred a total sum of $965.00 in court reporting and interpreter costs for Lourdes’s failure to appear for her deposition on August 22, 2023. (Id., ¶ 17; Exh. 13.)

The Court finds that the deposition has not proceeded, and Defendant is entitled to a second session of Plaintiff’s deposition. Thus, as the deposition of Plaintiff has not been completed, the motion to compel Plaintiff Lourdes’ deposition is granted.

Defendant requests $1,800 in monetary sanctions against Plaintiff and counsel of record. However, CCP section¿2025.450(g) only allows for sanctions against the deponent, not her counsel. Moreover, her counsel appears to have made diligent efforts to confirm her appearance, but she did not appear. (Harichi Decl., ¶¶ 5, 8, and 9.) While Defendant also moves for sanctions under CCP section 2023.010 for the misuse of discovery, "sections 2023.010 and 2023.030 do not independently authorize the trial court to impose monetary sanctions for misuse of discovery.” (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504.)            

Thus, as the motion to compel the deposition is granted, the request for sanctions against Plaintiff Lourdes is also granted, as no justification whatsoever has been provided for her failure to appear. However, sanctions will be reduced due to the simplicity of this motion and the fact that it is not opposed. As such, the Court imposes sanctions in the amount of $965, against Plaintiff Lourdes, payable within 20 days of this order, which is the amount Defendant incurred in court reporting and interpreter costs for Lourdes’s failure to appear for her deposition.