Judge: Mark E. Windham, Case: 21STLC01803, Date: 2022-12-15 Tentative Ruling

Case Number: 21STLC01803    Hearing Date: December 15, 2022    Dept: 26

Hernandez, et al. v. San Nicolas, et al.

MOTION TO COMPEL APPEARANCE AT DEPOSITION

AND REQUEST FOR SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

Defendant Charles San Nicholas’ Motion to Compel Appearance at Deposition and Request for Sanctions is GRANTED. PLAINTIFFS AARON HERNANDEZ AND JIMMY GARCIA ARE ORDRED TO APPEAR FOR DEPOSITION AT A DATE AND TIME DETERMINED BY DEFENSE COUNSEL, WITHIN 20 DAYS OF THIS ORDER. PLAINTIFFS ARE JOINTLY AND SERVERALLY ORDERED TO PAY SANCTIONS OF $1,711.65 TO DEFENSE COUNSEL WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On March 3, 2021, Plaintiffs Aaron Hernandez and Jimmy Garcia (“Plaintiffs”) filed this action against Defendant Charles San Nicolas (“Defendant Charles San Nicolas”) and others for breach of contract. Numerous discovery motions have been heard by the Court over the duration of this action.

On November 17, 2022, Defendant Charles San Nicholas filed the instant Motion to Compel Attendance at Deposition and Request for Sanctions. Plaintiffs filed an opposition on November 29, 2022.

Discussion

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).)

Defendant Charles San Nicholas served Plaintiffs with Notices of Deposition on September 29, 2022, setting their depositions for October 21, 2022. (Motion, Seeman Decl., ¶3 and Exh. A.) On October 18, 2022, Plaintiffs sent a letter refusing to appear for deposition because Defendants had not served discovery responses to outstanding requests. (Id. at Exh. B.) Defendant Charles San Nicholas served a meet and confer letter on October 28, 2022 and a second set of deposition notices on November 6, 2022. (Id. at Exhs. C-D.) The second depositions were set for November 17, 2022. (Id. at Exh. D.) On November 8, 2022, Plaintiffs sent another letter stating they would not appear for deposition until Defendants provided discovery responses. (Id. at Exh. E.)

Based on the foregoing, the Court finds that Defendant Charles San Nicholas adequately met and conferred with Plaintiffs regarding their refusal to appear for deposition prior to filing the instant Motion. Plaintiffs’ opposition first reiterates their meet and confer arguments by going over the long-running discovery disputes between the parties. (Opp., pp. 8-17.) Plaintiffs then argue that it was reasonable to not appear at deposition until they were satisfied with the discovery responses served by Defendants. Yet the opposition cites no legal authority for refusing to appear for deposition while the deponent awaits discovery responses. (Id. at pp. 18-19.) In fact, such a policy would only serve to increase the gamesmanship the Discovery Code strives to avoid between parties.

Therefore, Defendant Charles San Nicholas is entitled to an order compelling Plaintiffs’ attendance at deposition. An award of sanctions is also appropriate due to Plaintiffs’ failure to cooperate in the taking of their depositions. (Code Civ. Proc., § 2023.030, subd. (a).) Defendant Charles San Nicholas’ request for monetary sanctions is granted in the amount of $1,711.65 based on three hours of attorney time billed at $550.00 per hour and $61.65 in costs. (Motion, Seeman Decl., ¶¶2, 10.)

Conclusion

Defendant Charles San Nicholas’ Motion to Compel Appearance at Deposition and Request for Sanctions is GRANTED. PLAINTIFFS AARON HERNANDEZ AND JIMMY GARCIA ARE ORDRED TO APPEAR FOR DEPOSITION AT A DATE AND TIME DETERMINED BY DEFENSE COUNSEL, WITHIN 20 DAYS OF THIS ORDER. PLAINTIFFS ARE JOINTLY AND SERVERALLY ORDERED TO PAY SANCTIONS OF $1,711.65 TO DEFENSE COUNSEL WITHIN 20 DAYS OF THIS ORDER.

Moving party to give notice.