Judge Randolph M. Hammock, Case Number: 23STCV14938, Date: 2025-06-05 Tentative Ruling

DEFENDANT’S MOTION TO COMPEL THE DEPOSITIONS OF (1) PLAINTIFF BOBBY MYLES, (2) PLAINTIFF FRANCISCO SHIOZAKI, AND (3) PLAINTIFF BRYANT CARTER

Plaintiffs Bobby Myles, Bryant Carter, and Francisco Shiozaki bring this action against their employer the California Department of Transportation, and individual Defendants Ruben Delgado, Scott Okamura, and Alex Cuevas. Plaintiffs allege they suffered harassment based on race in the workplace. They assert causes of action for (1) race harassment under FEHA and (2) failure to prevent under FEHA.

Defendant’s Motion to Compel the Deposition of each Plaintiff is GRANTED. Plaintiffs are ordered to appear for their depositions in the next 60 days.

(a) 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 under Section 2025.410, 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.

(1) The motion shall 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.

(2) The motion 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.

Defendant’s counsel represents that they began in January of 2025 to schedule the Plaintiffs’ depositions. (DiPietro Decl. ¶ 2.) Over the coming months, Plaintiffs’ counsel was either non-responsive or failed to offer dates for the depositions. (Id. ¶ 3.) Having not heard anything from Plaintiff’s counsel by March 17, 2025, Defendant unilaterally noticed Plaintiffs’ depositions for April 8, 9, and 10. (Id.)

On April 3, 2025, Plaintiffs sent boilerplate objections to the deposition notice. After some back and forth, Plaintiffs’ counsel, Alfredo Nava, stated: “I think we will be able to proceed.” (DiPietro Decl. ¶ 6.) Defense counsel reasonably understood this to mean the depositions would go forward on the noticed dates. (Id.) Plaintiffs, however, did not appear for their scheduled depositions on April 8, 9, and 10, and Defendant took nonappearances. (Id. ¶ 7.)

In opposition, Plaintiffs argue they sent valid objections to the deposition notice and even offered an alternative date for the depositions. Plaintiff’s counsel maintains that he was in “trial” during this period. (Nava Decl. ¶ 6, Exh. G.)

It is worth noting that the single alternative date offered by Plaintiffs was April 20, 2025—a Sunday. It goes without saying that offering only a single day to depose three Plaintiffs would be insufficient. This was simply not a serious offer. In addition, the minute order provided by counsel purportedly showing that counsel was to be in trial during the deposition date is largely redacted. (Nava Decl. ¶ 6, Exh. G.) It does not even include counsel’s name as an appearing party.

Under the totality of the circumstances, Plaintiffs’ have failed to articulate any valid or reasonable basis for failing to appear at their noticed depositions.

Accordingly, Defendant’s Motion to Compel Plaintiffs’ Depositions is GRANTED. Plaintiffs are ordered to appear for their depositions in the next 60 days.

Code of Civil Procedure section 2025.450(g)(1), provides that, “[i]f a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . 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 sanction acted with substantial justification or that other circumstances make the imposition of sanction unjust.”

Here, based on Plaintiffs’ failure to appear at their properly noticed depositions, a monetary sanction is appropriate. Defendant’s counsel, Paul M. DiPietro, “do[es] not bill the state,” but “believe[s] that the reasonable value of [his] services is approximately $600 per hour.” (DiPietro Decl. ¶ 18.) He requests attorney’s fees in the amount of $3,600 based on 6 hours of work related to this motion. (Id.)

The court will award the requested $3,600 as the total sanction for all three motions, which it finds is a reasonable and just sanction under the totality of the circumstances. The sanction is awarded against Plaintiffs’ counsel Alredo Nava only (not his clients).

Defendant also moves for issue or evidentiary sanctions for Plaintiffs’ failure to appear. The court declines to award issue or evidentiary sanctions at this time because monetary sanctions are sufficient.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.