Judge: Peter Wilson, Case: 2019-01099366, Date: 2022-08-11 Tentative Ruling

Defendant Access Business Group LLC seeks to compel the deposition of Plaintiff Angel Martin and requests monetary sanctions in the total amount of $7,245 for the fees and costs incurred in connection with this motion.

Defendant has demonstrated that Plaintiff failed to appear for his duly noticed deposition on April 26, 2022. ROA 103, Zins Decl., ¶¶10-13 and Exs. D-F. Plaintiff’s Opposition (filed on his behalf by counsel) does not dispute that Defendant is entitled to take Plaintiff’s deposition. However, the Opposition argues that rather than compel Plaintiff’s deposition and impose monetary sanctions, this Court may dismiss this action for failure to prosecute because Plaintiff has not been in contact with his now former counsel since March 2022. The Opposition also argues that the amount of the monetary sanction is unreasonable and unduly prohibitive.

The Court declines to dismiss this action for failure to prosecute at this time. As explained in Defendant’s Reply papers, the circumstances permitting dismissal with prejudice for failure to prosecute are not present at this time. ROA 121, Reply, at pp. 2-3. Additionally, when deciding to dismiss a case, a court should consider (1) whether the plaintiff’s conduct was severe and deliberate; and (2) whether alternatives less severe than dismissal are available to remedy the situation. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 917; Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4^th 736, 765.) Clearly, imposing monetary sanctions is a less severe alternative than dismissal.

Should the circumstances warrant it, nothing prohibits Defendants from seeking to dismiss this matter in the future, including for the violation of this Order.

Defendant’s motion is compel is GRANTED. Plaintiff is ordered to appear for his deposition on August 29, 2022 at 9:00 a.m. by Veritext video teleconferencing service.

The monetary sanctions are unreasonable and excessive given the straightforward nature of this motion. Plaintiff is ordered to pay monetary sanctions to Defendant in the total amount of $2,460 for fees and costs incurred in connection with this motion, within 30 days.

Defendant is ordered to file a proposed Order giving effect hereto, within five court days. The proposed Order may indicate a date for the deposition other than as specified above, as that date was unilaterally selected by the Court.

The status conference is continued to November 4, 2022 at 9 AM, and the parties are ordered to file a joint status report not later than October 28, 2022.

Defendant is ordered to give notice and to serve the proposed Order, once entered, on Plaintiff, and to file proof of service with the court.