Judge: Lynne M. Hobbs, Case: 22STCV14584, Date: 2023-10-11 Tentative Ruling

Case Number: 22STCV14584    Hearing Date: October 11, 2023    Dept: 30

MARGARITA CARDOSO, et al. vs CITY OF LONG BEACH

Re: Motion to Compel an Order Directing Compliance with Deposition Subpoena of Nonparty Witness Erik Lee

TENTATIVE

Plaintiff’s Motion for an Order Compelling Compliance with Deposition Subpoena of Nonparty Witness Erik Lee is GRANTED. Mr. Lee is ordered to appear at deposition on November 16, 2023, at 10 a.m., or in the alternative within 30 days of this Court’s ruling.  Plaintiff’s request for monetary sanctions is DENIED.  Moving party to give notice.

DISCUSSION

On March 30, 2023 Plaintiff issued a deposition subpoena for Erik Lee’s virtual deposition testimony to be taken at 10:00 AM on April 26, 2023, via Zoom. Erik Lee was personally served on April 6, 2023. (Perez Decl. ¶ 2; Exhib. 1) Plaintiff concurrently served the City with a Notice of Deposition for Erik Lee. (Id. ¶ 3; Exhib. 2.) Plaintiff’s third party vendor photographed Mr. Lee as he read the documents he was personally served with. (Id. ¶ 6; Exhib. 4) Neither the nonparty deponent nor the City asserted any objections to Mr. Lee’s deposition. On April 26, 2023, Erik Lee failed to appear at his deposition. (Id. ¶ 4) Plaintiff’s Counsel and Defense Counsel waited approximately thirty minutes for Mr. Lee then took a certificate of nonappearance. (Id. ¶ 4; Exhib. 3)  Notice of this Motion and Motion were properly served by personal service on Mr. Lee.  (Perez Decl. ¶ 10.) Further, the deposition subpoena was properly accompanied by a proof of service of a notice of motion and motion. (10-5-23 POS.) No objection to the deposition subpoena was served and no opposition to this Motion was filed. Accordingly, the motion is GRANTED.

Plaintiff seeks monetary sanctions of $1,050.00 against Mr. Lee for the damages incurred for his nonappearance. The $1,050.00 is comprised of: the $75.00 fee for personal service of the deposition subpoena on Mr. Lee (Perez Decl. ¶ 7; Exhib. 5); the $400.00 fee to take the certificate of nonappearance (Id. ¶ 8; Exhib. 6); the ($75.00) fee of having these moving papers personally served on Mr. Lee (Id. ¶ 9); and the $500.00 contempt forfeiture pursuant to C.C.P. § 1992. Plaintiff also incurred costs preparing the instant motion, inclusive of the time spent conducting legal research and preparing the moving papers and supporting documents herein, but does not seek recovery for such incurred costs.

A nonparty deponent may be subject to contempt or monetary sanctions for disobeying a court order (Code of Civ. Proc., § 2025.480, subd. (k)) or for “flouting” the discovery process by suppressing or destroying evidence (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 476). A nonparty may be punished by contempt. (Code Civ. Proc., § 2020.240.) However, absent violation of a prior court order or “flouting” of the discovery process, the Court declines to impose monetary sanctions against Mr. Lee at this time. (See Vidrio v. Hernandez (2009) 172 Cal.App.4th 1443, 1454-1455 [“California courts have inherent power ‘to take appropriate action to secure compliance with . . . orders, to punish contempt, and to control its proceedings’” but “our trial courts have no inherent power to impose monetary sanctions” against a nonparty].) Plaintiff’s request for monetary sanctions is DENIED.