Judge Mark C. Kim, Case 19STCV35469 2022-08-23 Tentative Ruling

Judge: Mark C. Kim, Case: 19STCV35469, Date: 2022-08-23 Tentative Ruling

Case Number: 19STCV35469 Hearing Date: August 23, 2022 Dept: S27

1. Background Facts

Plaintiffs, Ashley and Jason Heard filed this action against Defendants, City of Long Beach and Neutron Holdings, Inc. for damages arising out of a trip and fall that occurred while Plaintiffs were riding Lime (owned by Neutron) scooters. Plaintiff alleges causes of action for general negligence, product liability, and premises liability. Plaintiffs filed their complaint on October 3, 2019.

On July 22, 2022, Plaintiffs Ashley Heard and Jason Heard filed a Motion to Compel the Deposition of Defendant Neutron Holdings, Inc. dba Lime’s Party-Affiliated Witness, Anthony Maldonado. On August 10, 2022, Defendant Neutron Holdings, Inc. dba Lime filed an opposition to Plaintiffs’ Motion to Compel. On August 15, 2022, Plaintiffs filed a reply to Defendant’s opposition.

2. Motion to Compel Deposition of Defendant Neutron Holdings Inc. dba Lime’s Party-Affiliated Witness, Anthony Maldonado

Plaintiffs seek an order to compel Defendant Neutron Holdings, Inc. dba Lime’s Party-Affiliated Witness, Anthony Maldonado’s deposition and monetary sanctions against Defendant and its attorneys of record, Mark Senior, Esq, Richard Garcia, Esq. and Manning & Kass Ellrod, Ramirez, Trester LLP, jointly and severally, in the sum of $3,547.00.

Code of Civil Procedure section 2025.450, section (a) provides:

“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.”

(Code Civ. Proc., § 2025.450, subd. (a).)

A motion under Section 2025.450, subdivision (a), must set forth specific facts showing good cause justifying the production of the requested documents in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(1).) Good cause is construed liberally and has been found where documents are necessary for trial preparation. (See Associated Brewers Dist. Co. v. Superior Court 1967) 65 Cal.2d 583, 587.) The motion must also “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce documents…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

On March 23, 2022, Plaintiffs served LIME with a Notice of Taking Deposition of LIME's Party-Affiliated Witness, Anthony Maldonado, scheduled for April 7, 2022. (De Luca Decl. ¶ 2 (c)). On March 31, 2022, Mr. Deluca sent Mr. Senior an email asking if the Deposition of Mr. Maldonado will be proceeding on April 7, 2022. (Id.) The deposition was unilaterally canceled by the Defendant. (Id.) Plaintiffs served LIME with a Notice of Continuance of Taking Deposition of Anthony Maldonado, scheduled for May 12, 2022. (Id.) Defendant stated that Anthony Maldonado would unavailable. (Id.) Upon multiple meet and confers between Plaintiffs and Defendant, on May 11, 2022, Plaintiffs served LIME with a Second Notice of Continuance of Taking Deposition of Anthony Maldonado, scheduled on June 29, 2022, as agreed to by Mr. Senior and Mr. Maldonado. (Id.) Defendant expressed that Maldonado would be unavailable that date and offered other dates in July. (Id.) On June 29, 2022, Mr. Deluca and Mr. Senior appeared for Mr. Maldonado's June 29, 2022, Deposition, however, Mr. Maldonado did not. As such, a Certificate of Non- Appearance was taken. (Id.)

In opposition, Defendant argues it is has agreed to the deposition of Maldonado, however scheduling conflicts have occurred. Defendant argues that Plaintiffs failed to sufficiently meet and confer. Defendant furthered argues that the Court should deny Plaintiffs’ request for sanctions. Defendant request sanctions against Plaintiffs and their counsel of record Phillip P. DeLuca in the amount of $3,300.00.

Plaintiffs’ evidence demonstrates that the met and confer regarding the deposition date was sufficient and Defendant failed to appear for the scheduled hearing. The Court find that Plaintiffs are entitled to an order compelling Maldonado to appear at the previously noticed deposition, and that good cause exists to require the production of the requested documents identified in the Amended Notice.

Defendant also seeks sanctions of $3,547.00., based on 6 hours of attorney time billed at $500.00 per hour, Certificate of Non-Appearance fee of $547.00, and a filing fee of $60.00. (DeLuca Decl. ¶ 24.) The court must impose monetary sanctions if a motion to compel is granted under this section unless the one subject to sanctions acted with substantial justification or other circumstances exist that would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).), The amount sought is excessive given the simplicity of the motion. The Court finds $2,107.00, based on 3 hours of attorney time, a filing fee, and a Certificate of Non-Appearance fee, to be reasonable.