Judge: Peter A. Hernandez, Case: BC697068, Date: 2022-08-09 Tentative Ruling
Case Number: BC697068 Hearing Date: August 9, 2022 Dept: O
Defendants Lindsay
Corporation’s and Lindsay Transportation Solutions, LLC fka Lindsay
Transportation Solutions Sales & Service LLC’s Motions for Orders: (1)
COMPELLING THE ATTENDANCE OF THIRD PARTY MICHAEL JIMENEZ, M.D. AT HIS
DEPOSITION is GRANTED; (2) HOLDING JIMENEZ TO APPEAL AT AN OSC RE CONTEMPT on
September 20, 2022 at 10:00 a.m.; and (3) REQUIRING JIMENEZ TO PAY MONETARY
SANCTIONS IN THE REDUCED AMOUNT OF $4,933.27.
Background
On March 8, 2018, Plaintiff filed a complaint, asserting causes of action against Valmont Industries, Inc. (“VII”), Valmont Highway, Armorflex International Limited (“Armorflex”), Lindsay Corporation (“Lindsay Corp.”), Lindsay Transportation Solution Sales & Service LLC (“Lindsay TSSS”), Ferreira Construction Co., Inc. (“Ferreira”), State of California (“CalTrans”) and Does 1-50 for:
1.
Negligence
and Negligence Per Se
2.
Strict
Liability
3.
Negligence
4.
Negligence
On May 18, 2018, Ferreira filed a cross-complaint, asserting causes of action against Statewide Traffic Safety and Signs Inc. and Roes 1-50 for:
1.
Contribution
2.
Declaratory
Relief
3.
Equitable
Indemnity
4.
Implied
Indemnity
On June 20, 2018, this case was transferred from Department 3 of the Personal Injury Court to this instant department.
On August 27, 2018, CalTrans filed a cross-complaint, asserting causes of action against VII, Valmont Highway, Armorflex, Lindsay Corp., Lindsay TSSS, Ferreira, Powell Constructors Inc (“Powell”) and Roes 1-50 for:
1.
Equitable
Indemnity
2.
Express
Indemnity
On November 19, 2018, Powell filed a cross-complaint, asserting causes of action against Ferreira and Moes 1-10 for:
1.
Breach
of Contract
2.
Express
Indemnity
3.
Equitable
Indemnity
4.
Equitable
Apportionment
5.
Implied
Contractual Indemnity
6.
Declaratory
Relief
The Final Status Conference is set for September 20, 2022. Trial is set for October 4, 2022.
Legal Standard
Where the witness whose deposition is sought is not a party (or a “party-affiliated” witness), a subpoena must be served to compel his or her attendance, testimony, or production of documents. (Code Civ. Proc., §§ 2020.010, subd. (b), 2025.280, subd. (b); see Terry v. SLICO (2009) 175 Cal.App.4th 352, 357). A deposition subpoena is enforceable by a motion to compel compliance (Code Civ. Proc. § 1987.1/§ 2025.480), contempt proceedings (Code Civ. Proc., §§ 1209, subd. (a)(10), 1991.1, 2020.240, 2023.030, subd. (e)) and/or a civil damages action by the aggrieved party (Code Civ. Proc., § 1992).
“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court [“CRC”], rule 3.1346 [emphasis added].)
Discussion
Lindsay Corp. and Lindsay TSSS move the court for orders (1) compelling third-party witness Michael Jimenez, M.D. (“Jimenez”) to appear on August 24, 2022 for his deposition previously scheduled for June 3, 2022 pursuant to the Deposition Subpoena for Personal Appearance (“Subpoena”) served on Jimenez on May 18, 2022, (2) holding Jimenez in contempt of court for failing to comply with the Subpoena or, in the alternative, for an order setting an OSC re: contempt and (3) requiring Jimenez to pay monetary sanctions in the amount of $30,847.00.
At the outset, the court notes that on July 12, 2022, Lindsay Corp. and Lindsay TSSS filed a proof of service which reflected that the instant motion was personally served on Jimenez on July 8, 2022. The court determines that Lindsay Corp. and Lindsay TSSS have complied with California Rules of Court rule 3.1346.
Counsel for Lindsay Corp. and Lindsay TSSS represents as follows: On May 3, 2022, the subject Deposition Subpoena for Personal Appearance (“subpoena”) was issued, compelling Jimenez to appear for his deposition on June 3, 2022. (Matthew Steinberg [“Steinberg”] Decl., ¶ 3, Exh. 1.) Jimenez was personally served with the subpoena by private investigator George Franco (“Franco”) on May 18, 2022. (Id., ¶ 3, Exh. 2.) Following service of the subpoena, Steinberg’s office sent a letter to Jimenez via email and overnight mail, enclosing a copy of the subpoena and advising that he needed to appear on June 3, 2022. (Id., ¶ 5, Exh. 5.) Between May 18, 2022 and June 3, 2022, Steinberg heard nothing from Jimenez. (Id., ¶ 5.) On June 3, 2022, a Certificate of Nonappearance was taken after Jimenez failed to appear at his deposition. (Id., ¶¶ 5-6, Exh. 7.) On June 6, 2022, Steinberg sent a letter to Jimenez via email and overnight mail, advising Jimenez of his failure to appear on June 3, 2022 and requesting, inter alia, that he return a signed agreement to appear for same on June 29, 2022 to avoid law and motion. (Id., ¶ 7, Exh. 8.) Jimenez never responded. (Id., ¶ 7.)
The court finds that Jimenez was properly served with a deposition subpoena and failed to appear. The motion to compel is granted.
Lindsay Corp. and Lindsay TSSS next seek an order holding Jimenez in contempt. Counsel for Lindsay Corp. and Lindsay TSSS and Franco have collectively filed a charging affidavit which establishes that Jimenez was properly served with the deposition subpoena and that, when he failed to appear, efforts were made to contact Jimenez to inquire about his reasons for not attending and to reschedule the deposition. These facts sufficiently reflect willful disobedience of the deposition subpoena.
Accordingly, the court will set an Order to Show Cause Re: Contempt for September 20, 2022 at 10:00 a.m. This order shall constitute the Order to Show Cause. In the event Jimenez appears for his deposition between the hearing date and September August 31, 2022, counsel for Lindsay Corp. and Lindsay TSSS is to contact the department and have the Order to Show Cause taken off-calendar.
Lindsay Corp. and Lindsay TSSS also seek the imposition of civil penalties pursuant to Code of Civil Procedure § 1992 (i.e., “[a] person failing to appear pursuant to a subpoena or a court order also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena or court order, which forfeiture and damages may be recovered in a civil action”); however, § 1992 requires the filing of a separate civil suit for damages. (See New York Times Co. v. Superior Court (1990) 51 Cal.3d 453, 464.) The request for civil penalties is denied on this basis.
Finally, Lindsay Corp. and Lindsay TSSS seek monetary sanctions in the amount of $30,847.00. Sanctions are appropriate pursuant to Code of Civil Procedure § 2023.030. With that said, Steinberg has failed to provide the court with any itemization of time expended in preparing the instant motion or with any hourly rates of counsel. The court is inclined to award sanctions in the reduced amount of $4,933.27, the amount charged by Franco for his services in effectuating service. Sanctions are payable within 30 days from the date Jimenez is provided notice of the court’s ruling.