Judge Michael P. Linfield, Case 19STCV03462 2023-04-20 Tentative Ruling

Judge: Michael P. Linfield, Case: 19STCV03462, Date: 2023-04-20 Tentative Ruling

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Case Number: 19STCV03462 Hearing Date: April 20, 2023 Dept: 34

SUBJECT: Motion to Compel Defendants’ Verified Responses and Request for Sanctions

Moving Party: Plaintiff Benjamin Nichols

Resp. Party: Defendants Jake Morris Dante, Cynthia Pett Dante, and Brillstein Entertainment Partners, LLC

SUBJECT: Motion to Compel Defendant Cynthia Pett Dante’s Deposition and Request for Sanctions

Moving Party: Plaintiff Benjamin Nichols

Resp. Party: Defendants Jake Morris Dante, Cynthia Pett Dante, and Brillstein Entertainment Partners, LLC

The Motion to Compel Verified Responses is DENIED as moot.

The Request for Sanctions (included in the Motion to Compel Verified Responses) is GRANTED. Monetary sanctions are AWARDED for Plaintiff and against Defendants and their Counsel, jointly and severally, in the amount of $776.00.

The Motion to Compel Deposition is GRANTED. Defendant Cynthia Pett Dante shall be made available for deposition within 72 hours.

The Request for Sanctions (included in the Motion to Compel Deposition) is DENIED.

BACKGROUND:

On February 1, 2019, Plaintiff Benjamin Nichols filed his Complaint against Defendants Jake Morris Dante, Cynthia Pett Dante, and Brillstein Entertainment Partners, LLC to allege the following causes of action related to an automobile accident:

(1) Negligence;

(2) Violation of Vehicle Code Sections 20001 and 20003;

(3) Violation of Vehicle Code Section 23152; and

(4) Negligent entrustment of motor vehicle.

On July 2, 2019, Defendants filed their Answer.

On July 19, 2022, the Court: (1) denied summary adjudication as to the first and fourth causes of action; (2) granted summary adjudication in favor of Defendants as to the second and third causes of action; and (3) granted summary adjudication in favor of Defendants as to punitive damages on the first, second, and third causes of action.

On March 3, 2023, Plaintiff filed his Motion to Compel Defendants’ Verified Responses and Request for Sanctions (“Motion to Compel Verified Responses”). In support of his motion, Plaintiff concurrently filed: (1) Declaration of Seri Kattan-Wright; and (2) Proposed Order.

On March 24, 2023, Plaintiff filed his Motion to Compel Defendant Cynthia Pett Dante’s Deposition and Request for Sanctions (“Motion to Compel Deposition”). In support of this motion, Plaintiff concurrently filed Proposed Order.

On March 29, 2023, Plaintiff filed: (1) Notice of Errata to Motion to Compel Deposition; and (2) Supplemental Declaration of Seri Kattan-Wright.

On April 7, 2023, Defendants filed: (1) Opposition to Motion to Compel Verified Responses; and (2) Opposition to Motion to Compel Deposition.

On April 17, 2023, Plaintiff requested that the Court dismiss with prejudice Defendants Brillstein Entertainment Partners, LLC and Cynthia Pett Dante from the Complaint.

No reply or other response to the motions has been filed.

ANALYSIS:

I. Motion to Compel Verified Responses

A. Legal Standard

The party to whom interrogatories and requests for production are directed shall sign the response(s) under oath unless the response contains only objections. (Code Civ. Proc., §§¿2030.250, subd. (a), 2031.250, subd. (a).)

B. Discussion

1. The Verifications

Plaintiff moves the Court to order Defendants to provide verifications to Defendant Jake Morris Dante’s supplemental discovery responses. (Motion to Compel Verified Responses, pp. 7:27–28, 8:1–3.)

Defendant argues that the verifications were provided on April 3, 2023 (except for one of the verifications, which will be provided before the hearing on the motion), and that this motion is thus moot. (Opposition to Motion to Compel Verified Responses, p. 1:10–18.) Defendant attaches emails that indicate the verifications have been provided. (Id. at Exh. 1.)

Given that the only evidence before the Court indicates the verifications have been provided, the Court DENIES as moot the Motion to Compel Verified Responses.

2. Sanctions

Plaintiff requests monetary sanctions in the amount of $776.00 on Defendants and Defense Counsel. (Motion to Compel Verified Responses, p. 7:22–25.)

Defendants oppose the request for sanctions, arguing that they are not warranted because Defendants made a good faith effort to resolve these disputes without the need for court interference. (Opposition to Motion to Compel Verified Responses, p. 1:20–26.)

Defendants and their Counsel had failed to serve timely, verified responses to the requests for discovery at the time the Motion to Compel Verified Responses was filed. The Court does not have evidence before it that would indicate Defendants or their Counsel acted with substantial justification or that there are other circumstances that would make the imposition of a sanction unjust. Plaintiff should not have to chase Defendants to obtain verifications for discovery responses. Thus, the Court must impose a monetary sanction on Defendants and their Counsel. (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)¿¿

Plaintiff’s Counsel declares that they bill at $350.00 per hour, that they spent two hours on this motion and incurred $76.00 in costs. (Decl. Kattan-Wright, ¶¶ 14–15.)

The Court finds that the hourly rate, hours spent, and costs are all reasonable. The Court will award monetary sanctions for Plaintiff and against Defendants and their Counsel, jointly and severally, in the amount of $776.00.

C. Conclusion

The Motion to Compel Verified Responses is DENIED as moot.

The Request for Sanctions is GRANTED. Monetary sanctions are AWARDED for Plaintiff and against Defendants and their Counsel, jointly and severally, in the amount of $776.00.

II. Motion to Compel Deposition

A. Legal Standard

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(Code Civ. Proc., § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(Code Civ. Proc., § 2025.280, subd. (a).)¿¿

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(Code Civ. Proc., § 2025.450, subd. (a).)¿

The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿(Code Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).) “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124.)

B. Discussion

1. The Deposition

Plaintiff moves the Court to order Defendant Cynthia Pett Dante’s immediate appearance for deposition. (Motion to Compel Deposition, p. 8:4–5.) Plaintiff argues that he has attempted to notice her deposition on five separate occasions, but that she has failed to appear. (Id. at p. 6:6–9.)

Defendants oppose the motion, arguing: (1) that the motion is moot because Defendant Cynthia Pett Dante has agreed to the deposition and provided a proposed deposition date; and (2) that Defendant Cynthia Pett Dante’s objections to her deposition were timely and proper. (Opposition to Motion to Compel Deposition, pp. 1:15–17, 2:7–8.)

On April 17, 2023, Plaintiff requested the dismissal with prejudice of Defendants Cynthia Pett Dante and Brillsteing Entertainment Partners LLC, and there is no indication to the Court that the Clerk’s Office will not comply with the request. However, even if this defendant is dismissed, it does not automatically moot this motion.

According to the evidence Defendants submitted, Defendants offered April 21, 2023 for the deposition, and Plaintiff declined, requesting earlier dates. (Opposition to Motion to Compel Deposition, Exh. 1, p. 1.) The hearing on this matter is April 20, 2023. Trial is scheduled in this matter for May 1, 2023. As the Parties have not come to an agreement on the deposition date, the Court will act on the motion.

The Court GRANTS the Motion to Compel Deposition. Defendant Cynthia Pett Dante shall be made available for deposition within 72 hours, unless otherwise agreed between the parties.

2. Sanctions

“If a motion under subdivision (a) [of Code of Civil Procedure section 2025.450] is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Here, the date of the deposition compelled will be approximately the same date as that Defendants offered to Plaintiff. Thus, the Court finds that these circumstances make the imposition of a monetary sanction unjust.

The Court DENIES Plaintiff’s Request for Monetary Sanctions.

C. Conclusion

The Motion to Compel Deposition is GRANTED. Defendant Cynthia Pett Dante shall be made available for deposition within 72 hours of the issuance of this Order.

The Request for Sanctions is DENIED.