Judge Mark E. Windham, Case Number: 21STCV46048, Date: 2024-10-30 Tentative Ruling

Judge: Mark E. Windham, Case: 21STCV46048, Date: 2024-10-30 Tentative Ruling

Case Number: 21STCV46048 Hearing Date: October 30, 2024 Dept: 26

Bendo v. Martz, et al.

MOTION TO COMPEL DEPOSITION AND REQUEST FOR SANCTIONS

(CCP §§ 2025.450)

TENTATIVE RULING:

Defendant Emerald Isle Assisted Living, Inc.’s Motion to Compel Plaintiff’s Attendance at Deposition and Request for Monetary Sanctions is GRANTED. PLAINTIFF NATHANIEL BENDO IS ORDERED TO APPEAR FOR DEPOSITION AT A DATE AND TIME DETERMINED BY DEFENSE COUNSEL, WITHIN 20 DAYS OF THIS ORDER. PLAINTIFF AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $2,485.00 TO MOVING DEFENDANT’S COUNSEL, ALSO WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff Nathaniel Bendo (“Plaintiff”), in propria persona, filed the instant action for fraud, negligence, and other claims against Defendants Laura Martz (erroneously sued as Laura Marzt dba Emerald Isle Assisted Living”), and Paul Dizon (“Defendants”) on December 17, 2021. On October 5, 2022, the Court sustained Defendants’ demurrer to the Complaint with leave to amend. (Minute Order, 10/05/22.) Plaintiff filed a First Amended Complaint on November 7, 2022. Defendants answered the First Amended Complaint on July 31, 2023. On August 7, 2023, Defendant added Emerald Isle Assisted Living, Inc. as a doe defendant.

On September 3, 2024, Defendant Emerald Isle filed the instant Motion to Compel Plaintiff’s Attendance at Deposition and Request for Monetary Sanctions. Plaintiff filed an opposition on procedural grounds on October 21, 2024.

Discussion

Service of the Motion and Notice of Hearing

Plaintiff’s opposition contends that service of the Motion did not comply with the statutory requirement to provide 16 court days, plus five regular days’ notice prior to the hearing. (Citing Code Civ. Proc., §1005.) Defendant Emerald Isle filed proof of service of the Motion and Notice of Hearing on October 16, 2024. The proof of service states that the Motion and Notice of Hearing were served on Plaintiff’s counsel on October 1, 2024. (Proof of Service, filed 10/16/24, ¶¶4-6.) Plaintiff incorrectly argues that the Motion papers were not served until October 8, 2024, which appears to be based on the date the proof of service was signed. (Id. at p. 2.) Nor does the state any of these facts in an affidavit under penalty of perjury. (Opp., pp. 1-2.)

16 court days, plus five regular days prior to the October 30, 2024 hearing required service to be effectuated by October 3, 2024. Therefore, service of the Motion and Notice of Hearing complied with the statutory requirements and the Court will consider the merits.

Legal Standard

Code of Civil Procedure section 2025.450, section (a) states in relevant part:

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).) The motion must also “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” and “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450, subds. (b)(1), (2).)

Motion to Compel Deposition

In order to set a mutually agreeable deposition date, defense counsel called Plaintiff’s counsel at the number listed on the Substitution of Attorney filed with this Court on November 7, 2022, and at the number listed on the State Bar website, on May 12, 21, 22, 23 (x3), 28, 29, 30, 31, and June 11, 2024. (Motion, Martz Decl., ¶5.) Plaintiff’s attorney did not answer or return any of the messages left after each call. (Ibid.) Defense counsel served Plaintiff with a Notice of Deposition on June 11, 2024, setting the deposition for June 27, 2024. (Id. at ¶5 and Exh. A.) Defense counsel called Plaintiff’s counsel on June 17, 20, 21, 24, 25, 26, and 27 (x4), 2024, to confirm the deposition would go forward. (Id. at ¶6.) It was not until June 27, 2024 that Plaintiff’s counsel informed defense counsel that Plaintiff would not appear. (Ibid.) Plaintiff’s counsel was advised that a certificate of non-appearance would be prepared. (Id. at ¶8.) On June 28, July 2, 3, 5 and 8(x2), 2024, defense counsel called Plaintiff’s counsel to again arrange a deposition date before the August 19, 2024, trial. (Id. at ¶7.) Plaintiff’s counsel did not answer, call, or respond to the phone messages. (Ibid.)

Based on this history and the lack of any substantive opposition, Defendant Emerald Isle has demonstrated that the meet and confer requirement is satisfied and that there was no good cause for Plaintiff’s failure to communicate regarding, or appear at, their deposition. Due to Plaintiff’s failure to cooperate in the taking of their deposition, Defendant Emerald Isle is entitled to an order compelling their appearance and awarding sanctions. (See Code Civ. Proc., § 2025.450, subd. (g)(1).) Defendant Emerald Isle is awarded $2,485.00 in sanctions as follows: four hours of attorney time billed at $400.00 per hour; $60.00 in filing fees; and $825.00 for Plaintiff’s non-appearance. (Motion, Martz Decl., ¶¶8-10.)

Conclusion

Moving party to give notice.