Judge: Nathan Vu, Case: 30-2022-01250202, Date: 2023-07-17 Tentative Ruling

Motion to Compel Discovery

Plaintiff Perla Mendoza’s Motion to Compel Defendant’s Attendance at Deposition is GRANTED.

Defendant Arnoldo Meraz is ORDERED to appear for deposition via videoconference at a mutually agreeable date and time, no later than 30 days after service of the notice of ruling.

Counsel for Defendant Arnoldo Meraz is ORDERED to make the appropriate arrangements with the governmental authorities in charge of the facility where Defendant Arnoldo Meraz is incarcerated to allow Defendant Arnoldo Meraz to appear via videoconference at his deposition.

The court ORDERS that Defendant Arnoldo pay to Plaintiff Perla Mendoza sanctions in the amount of $760 (2 hours x $350 per hour in reasonable attorney’s fees and $60 in motion filing fees), no later than 30 days after service of the notice of ruling.

Plaintiff Perla Mendoza moves to compel the deposition of Defendant Arnoldo Meraz (Defendant Arnoldo).

Compelling Party Deposition

Any party may obtain discovery by taking in California the oral deposition of any person, including any party to the action. (See Code Civ. Proc., § 2025.010.) A party desiring to take an oral deposition of a person who is under the jurisdiction of the court shall give written notice of the deposition. (See Code Civ. Proc., § 2025.220, subd. (a).)

If, after service of a deposition notice, a party to the action, without having served a valid objection, fails to appear for examination 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 moving papers establish that Plaintiff properly noticed the deposition of Defendant Arnoldo and that Defendant Arnoldo failed to appear at his deposition. (See Decl. of Mary Jones in Supp of Motion to Compel [Jones Decl.], ¶¶ 3, 7, Exh. B; Decl. of Robert P. Karwin, Esq. in Supp. of Mot. to Compel [Karwin Decl.], ¶¶ 6-9, Exh. C.)

The motion papers also include a declaration confirming that Plaintiff’s counsel attempted to meet and confer with Defendant’s counsel regarding Defendant Arnoldo’s failure to appear, as required by Civil Procedure Code section 2025.450. (See Karwin Decl., ¶¶ 10-12.)

While Defendant Arnoldo’s counsel confirmed that he had receive the notice of deposition, Defendant Arnoldo had not served any objections to the notice of deposition nor had he or his counsel made any arrangements for Defendant Arnoldo to appear for his deposition remotely. (See Jones Decl., ¶ 3; Karwin Decl., ¶¶ 6, 10.) Plaintiff also presented evidence that it would have been possible for Defendant Arnoldo or his counsel to make arrangements to appear for the deposition. (See Jones Decl., ¶¶ 4-6.)

Not only did Defendant Arnoldo fail to serve objections to the notice of deposition, but he also failed to file an opposition to this Motion to Compel. The failure to address or oppose an issue in a motion constitutes a waiver on that issue. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; see also Wright v. Fireman’s Fund Ins. Companies (1992) 11 Cal.App.4th 998, 1011 [“it is clear that a defendant may waive the right to raise an issue on appeal by failing to raise the issue in the pleadings or in opposition to a . . . motion”].)

The court therefore will grant the Motion to Compel.

Sanctions

If the court grants a motion to compel a deposition pursuant to a notice of deposition, the Civil Procedure Code requires the court to impose monetary sanctions “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 deponent “acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

California Rules of Court rule 3.1348(a) further provides that “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).

Here, Defendant Arnoldo has not shown that he acted with substantial justification or that other circumstances make the imposition of the sanction unjust. The court therefore will grant sanctions.

Plaintiff shall give notice of this ruling.