Judge: Matthew C. Braner, Case: 37-2022-00021636-CU-OR-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2022-00021636-CU-OR-CTL SAN DIEGO GAS & ELECTRIC COMPANY VS HERRERA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff San Diego Gas & Electric Company's unopposed motion to compel the deposition of Defendant Phillip Herrera is GRANTED.

As of January 11, 2024, Defendant has not filed an opposition to Plaintiff's motion. Pursuant to this court's local rules, this failure to respond will be regarded as a concession that Plaintiff's motion has merit. (See San Diego Superior Court Local Rule 2.1.19, subd. (B).) However, it cannot be deemed an admission that sanctions should be awarded. (CRC 3.1348, subd. (b).) Plaintiff's counsel attests that Defendant was first served with a deposition notice for a deposition set for August 29, 2023 after attempts at meeting and conferring regarding a mutual agreeable date were ignored, but Defendant did not serve objections to the notice and his counsel informed Plaintiff the day before the scheduled date that he would not appear. Thereafter, Defendant and Plaintiff agreed to a September 29, 2023 deposition date, and a second notice was sent. However, on the morning of the scheduled date, Defendant's counsel informed Plaintiff that neither she nor Defendant would appear, and requested that Plaintiff cancel the deposition; Plaintiff refused, appeared at the deposition and obtained a certificate of non-appearance. Defendant and his counsel then ignored subsequent efforts by Plaintiff to schedule and take Defendant's deposition.

There is no evidence to indicate Defendant cannot appear for deposition. Plaintiff's motion was unopposed; there does not appear to be any substantial justification for Defendant's failure and unwillingness to appear. Sanctions will therefore be granted against both Defendant and his counsel.

Plaintiff requests sanctions of $5,417.50 based on a proposed hourly rate of $400/hour. However, Plaintiff's counsel failed to set forth for the amount of time attributable to the motion, other than stating that the fee for taking the non-appearance was $617.50. The court is left to speculate about an appropriate number of attorney work hours. Given the very simple, straightforward nature of the motion, and the fact that it was unopposed, the court concludes that 2 hours of attorney work is fair and reasonable. The court also will not include the cost of the non-appearance, which was an intentional decision made by counsel despite notice that Defendant would not appear.

Defendant Herrera is ordered to sit for his deposition no later than February 9, 2024.

Defendant and its counsel of record are ordered to pay sanctions of $800.00 to Plaintiff no later than February 9, 2024.

Calendar No.: Event ID:  TENTATIVE RULINGS

3047308  19 CASE NUMBER: CASE TITLE:  SAN DIEGO GAS & ELECTRIC COMPANY VS HERRERA [IMAGED]  37-2022-00021636-CU-OR-CTL The minute order is the order of the Court.

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3047308  19