Judge: Peter A. Hernandez, Case: 23PSCV02203, Date: 2024-07-16 Tentative Ruling

Case Number: 23PSCV02203    Hearing Date: July 16, 2024    Dept: K

1.         Defendant Juan Hernandez Banuelos’ Motion for Order Compelling Plaintiff, Ricardo Penaloza, to Appear for an In-Person Deposition is GRANTED. Ricardo is ordered to submit to an in-person deposition within 30 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $1,082.20 and are payable within 30 days from the date of the notice of ruling.

2.         Defendant Juan Hernandez Banuelos’ Motion for Order Compelling Plaintiff, Rosa Penaloza, to Appear for an In-Person Deposition is GRANTED. Rosa is ordered to submit to an in-person deposition within 30 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $560.00 and are payable within 30 days from the date of the notice of ruling.

3.         Defendant Juan Hernandez Banuelos’ Motion for Order Compelling Plaintiff, Jasmine Penaloza, to Appear for an In-Person Deposition is GRANTED. Jasmine is ordered to submit to an in-person deposition within 30 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $1,232.20 and are payable within 30 days from the date of the notice of ruling.

Background    

Plaintiffs Jasmine Penaloza (“Jasmine”), Rosa Penaloza (“Rosa”) and Ricardo Penaloza (“Ricardo”) (together, “Plaintiffs”) allege that they sustained injuries and damages in an April 23, 2022 motor vehicle accident on the westbound 60 in Diamond Bar.

On July 21, 2023, Plaintiffs filed a complaint, asserting causes of action against Juan Luis Hernandez Banuelos (“Defendant”) and Does 1-50 for:

1.               Motor Vehicle

2.               General Negligence

A Case Management Conference is set for July 16, 2024.

1.         Motion to Compel Plaintiff Ricardo’s Deposition

Legal Standard

“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 . . ., 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).)

A motion to compel deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

The motion shall 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.” (Code Civ. Proc., § 2025.450, subd. (b)(1).)

A court shall impose monetary sanctions if the motion to compel is granted, “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.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Discussion

Defendant moves the court for an order compelling Ricardo to appear for an in-person deposition on a date and time certain within 30 days of the court’s ruling on this motion. Defendant also seeks sanctions against Ricardo and his counsel in the amount of $1,957.20.

Defendant’s counsel Dwayne S. Beck (“Beck”) represents as follows:

On September 19, 2023, Defendant served Ricardo with a “Notice of Deposition,” wherein Ricardo’s deposition was scheduled for April 2, 2024 at Beck’s office in Riverside. (Beck Decl., ¶ 5, Exh. A.) On October 11, 2023, Defendant served Ricardo with a “Notice of Continuance of Taking Deposition of Plaintiff,” rescheduling Ricardo’s deposition to March 8, 2024 at Beck’s office. (Id., ¶ 6, Exh. B.) On February 14, 2024, Ricardo served an objection thereto, advising that he was not available for his deposition at the date and time scheduled. (Id., ¶ 7, Exh. C.) On February 14 and 23, 2024, Beck’s office emailed Ricardo’s counsel’s office to obtain Ricardo’s availability for deposition. (Id., ¶ 8, Exh. D.) On February 27, 2024, Beck sent Ricardo’s counsel a letter, advising therein that while he had received Ricardo’s February 14, 2024 objection, he would be moving forward with the depositions of the three plaintiffs as scheduled since he hadn’t received alternate dates. (Id., Exh. E.) On February 27, 2024, Ricardo’s counsel’s office responded that Ricardo was available for deposition on April 19, 22, and 26, 2024, at 10:00 a.m. via Zoom. (Id., ¶ 9, Exh. D.) Beck’s office responded the same day, advising that none of the above dates worked but that Beck was available May 6, 2024 to take all three plaintiffs’ depositions in-person. (Id., ¶ 10, Exh. D.) Ricardo’s counsel’s office advised that May 6, 2024 was not a workable date and offered Beck their office to conduct in person depositions. (Id., ¶ 11, Exh. D.) Counsel thereafter exchanged communications disputing the location of the deposition. (Id., ¶¶ 12-18, Exhs. D and F.) On March 8, 2024, Beck took a Certificate of Non-Appearance after Ricardo failed to appear for deposition. (Id., ¶ 20, Exh. G.)

The procedural history on ecourt reflects that Beck requested an Informal Discovery Conference (“IDC”) on March 29, 2024, which the court granted on April 2, 2024 and set for May 22, 2024. On May 17, 2024, the court advanced the IDC pursuant to Defendant’s ex parte application, heard the IDC, noted that the discovery issued were not resolved and permitted the parties to file discovery motions. The instant motion followed on May 23, 2024.

Ricardo, in opposition, contends that the motion is moot, because the March 8, 2024 date scheduled for deposition has since passed. Ricardo’s argument is nonsensical because it was Ricardo’s failure to appear at his deposition on March 8, 2024, which lead to the filing of the instant motion.

Ricardo then asserts that “[t]here is Good Cause for Protective Order.” (Opp., 3:3). Ricardo, however, never moved for a protective order.

Counsel’s dispute hinges on their varying interpretation of Code of Civil Procedure § 2025.310, which reads, in relevant part, as follows:

(a)        At the election of the deponent or the deposing party, the deposition

officer may attend the deposition at a different location than the deponent

via remote means. A deponent is not required to be physically present with

the deposition officer when being sworn in at the time of the deposition.

(b)       Subject to Section 2025.420, any party or attorney of record may, but is

not required to, be physically present at the deposition at the location of the

deponent. . .

(d)       An exercise of the authority granted by subdivision (a) or (b) does not

waive any other provision of this title, including, but not limited to,

provisions regarding the time, place, or manner in which a deposition shall

be conducted . . .

Defendant’s counsel contends that Ricado must attend his deposition in-person, while Ricardo’s counsel contends that Ricardo may attend same remotely.

The court is persuaded that when subdivisions (a) and (d) are read together an election made pursuant to subdivision (a) is not intended to supplant Code of Civil Procedure §§ 2025.220, subdivision (a)[1] and 2025.250, subdivision (a)[2] regarding the place where a deposition is conducted. The deposing party chooses the location of the deposition pursuant to the above provisions, provided that the location is within certain geographical limits.

The motion, then, is granted. Ricardo is ordered to submit to an in-person deposition within 30 days from the date of the notice of ruling.

Sanctions

Defendant seeks sanctions against Ricardo and his counsel in the amount of $1,957.20 [calculated as follows: 2 hours preparing motion, plus 1 hour meeting/conferring, plus 1.5 hours preparing reply plus 1 hour attending hearing at $250.00/hour, plus $60.00 filing fee, plus $522.20 for Certificate of Non-Appearance].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $1,082.20 (i.e., 1 hour preparing motion, plus 0.5 hours meet/confer, plus 0.5 hours attending hearing at $250.00 /hour, plus $60.00 filing fee, plus $522.20 Certificate of Non-Appearance fee). Sanctions are payable within 30 days from the date of the notice of ruling.

2.         Motion to Compel Plaintiff Rosa’s Deposition

Legal Standard

See Motion #1.

Discussion

Defendant moves the court for an order compelling Rosa to appear for an in-person deposition on a date and time certain within 30 days of the court’s ruling on this motion. Defendant also seeks sanctions against Rosa and her counsel in the amount of $1,435.00.

See synopsis of Motion #1.[3]

The motion is granted. Rosa is ordered to submit to an in-person deposition within 30 days from the date of the notice of ruling.

Sanctions

Defendant seeks sanctions against Rosa and her counsel in the amount of $1,435.00 [calculated as follows: 2 hours preparing motion, plus 1 hour meeting/conferring, plus 1.5 hours preparing reply plus 1 hour attending hearing at $250.00/hour, plus $60.00 filing fee].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $560.00 (i.e., 1 hour preparing motion, plus 0.5 hours

meet/confer, plus 0.5 hours attending hearing at $250.00 /hour, plus $60.00 filing fee). Sanctions are payable within 30 days from the date of the notice of ruling.

3.         Motion to Compel Plaintiff Jasmine’s Deposition

Legal Standard

See Motion #1.

Discussion

Defendant moves the court for an order compelling Jasmine to appear for an in-person deposition on a date and time certain within 30 days of the court’s ruling on this motion. Defendant also seeks sanctions against Jasmine and her counsel in the amount of $2,607.20.

See synopsis of Motion #1.[4]

The motion is granted. Jasmine is ordered to submit to an in-person deposition within 30 days from the date of the notice of ruling.

Sanctions

Defendant seeks sanctions against Jasmine and her counsel in the amount of $2,607.20 [calculated as follows: 3 hours preparing motion, plus 1 hour meeting/conferring, plus 1.5 hours preparing reply plus 2 hours attending hearing at $250.00/hour, plus $60.00 filing fee, plus $672.20 for Certificate of Non-Appearance].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $1,232.20 (i.e., 1 hour preparing motion, plus 0.5 hours meet/confer, plus 0.5 hours attending hearing at $250.00 /hour, plus $60.00 filing fee, plus $672.20 Certificate of Non-Appearance fee). Sanctions are payable within 30 days from the date of the notice of ruling.