Judge: Michael E. Whitaker, Case: 19STCV30793, Date: 2022-08-05 Tentative Ruling

Case Number: 19STCV30793    Hearing Date: August 5, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Plaintiffs Gary Smith (“Smith”) and Warlene Navarro (“Navarro”) (collectively, “Plaintiffs”) sued defendants Vontray Norris and Valerie Norris (collectively, “Defendants”) based on injuries Plaintiffs allege they sustained in two trip and falls by Smith on property owned and controlled by Defendants.  Defendants move to compel Plaintiffs’ appearances for depositions and the production of documents requested in the respective deposition notices.  Defendants request monetary sanctions.  Plaintiffs oppose the motions.  

ANALYSIS

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent’s attendance and testimony.  (Code Civ. Proc., § 2025.450, subd. (a).) 

Here, on April 19, 2022, Defendants served the subject deposition notices on Plaintiffs.  Defendants noticed Smith’s deposition for May 9, 2022, and Navarro’s deposition for May 16, 2022.   Neither Smith nor Navarro appeared for deposition on those dates.  As of the date of filing of this motion, Plaintiffs have not appeared for deposition.  

            In opposition, Plaintiffs advance the declaration of counsel for Plaintiffs, Benjamin P. Wasserman (“Wasserman”).  Wasserman states that he never received Defendants’ service of the subject deposition notices.  Wasserman points to the emails sent to him attached as Exhibits B and C to the Declarations of Marcella I. Wilson in support of the motions, stating that they do not depict the deposition notices as attachments.  (Declaration of Benjamin P. Wasserman, ¶ 10.) The Court notes that Exhibit B to the Declarations of Marcella I. Wilson in support of the motion do, in fact, depict that the respective deposition notices were included as attachments to those emails.  (See Declarations of Declarations of Marcella I. Wilson, Exhibit B.)  Wasserman further states that counsel for Defendants did not provide a courtesy call prior to the date of the depositions, a link to the videoconference prior to the depositions, nor a call, email, or fax to him after Plaintiffs’ failed to appear for their respective depositions.  (Declaration of Benjamin P. Wasserman, ¶¶ 11-13.)

            Electronic service is deemed complete at the time of transmission, unless served on a noncourt day – in which case service is deemed complete on the next court day.  (Code Civ. Proc., § 1010.6, subd. (a)(5); Cal. Rules of Court, rule 2.251, subd. (i).)  Despite Wasserman’s contention that he did not receive the emails corresponding to Defendants’ service of the deposition notices, the Court finds that Wasserman has not proffered sufficient competent evidence to establish that Defendants’ service of the deposition notices was defective.

Defendants seek monetary sanctions in connection with the motions.  The Court finds, however, that the Declarations of Marcella I. Wilson fail to provide sufficient facts from which the Court can determine that Defendants’ requested amount of monetary sanctions constitutes reasonable, compensable expenses caused by Plaintiffs’ discovery abuse.  (See Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262; Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 790.)  Accordingly, the Court denies Defendants’ requests for monetary sanctions.

CONCLUSION AND ORDER

Therefore, the Court grants Defendants motions to compel Plaintiffs’ appearance for deposition per Code of Civil Procedure section 2025.450, and orders Plaintiffs to appear for deposition within 30 days of notice of the Court’s orders, unless Defendants stipulate otherwise. 

Defendants shall provide notice of the Court’s orders and file a proof of service of such.