Judge: Ronald F. Frank, Case: 23TRCV02061, Date: 2023-11-28 Tentative Ruling
Case Number: 23TRCV02061 Hearing Date: November 28, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: November 28, 2023¿¿
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CASE NUMBER: 23TRCV02061
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CASE NAME: Caroline
Nguyen v. C.E. Allencompany, Inc., et al.
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MOVING PARTY: Plaintiff, Caroline Nguyen
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RESPONDING PARTY: Defendant,
C.E. Allen Company, Inc., (erroneously sued as
C.E. Allen Company, Inc.)
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TRIAL DATE: Not Set.
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MOTION:¿ (1) Motion to Compel Deposition
(2)
Request for Sanctions
Tentative Rulings: (1) Plaintiff’s Motion to
Compel is GRANTED.
(2) Plaintiff’s Request for Sanctions is GRANTED in
the amount of $1,000, payable by defense counsel to Plaintiff’s counsel in 30
days.
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I. BACKGROUND¿¿¿
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A. Factual¿¿¿
On
June 26, 2023, Plaintiff, Caroline Nguyen (“Plaintiff”) filed a Complaint
against Defendants, C.E. AllenCompany, Inc., and DOES 1 through 50. The
Complaint alleged causes of action for: (1) Motor Vehicle Negligence; and (2)
General Negligence.
The
moving papers assert that on July 27, 2023, Plaintiff served a notice of Taking
Deposition of Employee(s) and/or Person(s) Most Qualified for Defendant, C.E.
AllenCompany, Inc. and set the deposition for August 25, 2023. Plaintiff also asserts
that on August 18, 2023, Defense Counsel emailed plaintiff’s counsel and
explained that the deponents were not available for the noticed depositions on that
date, so Plaintiff’s counsel asked what alternatives dates Defense Counsel
proposed. On August 23, 2023, Plaintiff’s counsel sent a follow up asking for
proposed deposition dates for August 31, 2023. Plaintiff further notes that on
August 31, 2023, Defense Counsel stated that driver Octavio Vega was available
for deposition in the morning of September 18 or 19, 2023. Defense counsel also
stated Mr. Vega required the assistance of a Spanish interpreter.
On
September 1, 2023, Plaintiff’s counsel responded stating that notice would be
sent for September 19, 2023 with a Spanish interpreter. Subsequently, Plaintiff
served the first continuance reflecting this. After working with defense
counsel’s time of day request, Plaintiff’s counsel sent a link for the
deposition on September 18, 2023 set for the next day. Plaintiff contends that
Defense Counsel responded stating they had served objections that Thursday
prior confirming that no witness would be produced. Plaintiff informed defense
counsel than no one in Plaintiff’s office had agreed to take the deposition off
calendar in exchange for a discovery extension, and noted that defense counsel
provided this date and asked Plaintiff’s counsel to change the time from 1 p.m.
to 10 a.m., and noted Plaintiff would not take the deposition off calendar.
However, Plaintiff nonetheless took the deposition off calendar.
Plaintiff
contends that on September 26, 2023, Plaintiff’s counsel served a second
continuance. On October 9, 2023, Plaintiff’s counsel reached out to defense
counsel confirming their client’s deposition for October 16, 2023 with a
Spanish interpreter. On October 12, 2023, Plaintiff’s counsel forwarded a link
for the deposition. On October 13, 2023, defense counsel sent an email stating
they had sent objections to the depositions the day prior, noting they would
still not be producing any witnesses. To date, Plaintiff notes that Defendant’s
drier, Octaviano Vega, Defendant’s supervisor, Rick Beyer, and Defendant’s PMQs
have not been deposed in this matter, despite Plaintiff having served multiple
deposition notices. As such, Plaintiff has filed this Motion to Compel both Deposition.
B. Procedural¿¿¿
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On October 17, 2023, Plaintiff filed a
Motion to Compel the PMQ for Defendant C.E. AllenCompany, Inc. and Requests for
Production of Documents, and Requests for Sanctions. On November 13, 2023,
Defendant filed an opposition. On November 16, 2023, Plaintiff filed a reply
brief.
II. MEET AND CONFER
This
Court finds that Plaintiff’s efforts to meet and confer are sufficient to bring
this motion.
III. ANALYSIS¿¿
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Code of Civil Procedure section
2025.450, section (a) provides:
“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.”
(Code Civ. Proc., § 2025.450, subd. (a).)
The motion must “be accompanied by a meet and confer
declaration under Section 2016.040, or, when the deponent fails to attend the
deposition…by a declaration stating that the petitioner has contacted the
deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450,
subd. (2).) A court shall impose monetary sanctions if the motion to compel is
granted unless the one subject to sanctions acted with substantial
justification or other circumstances would make the imposition of the sanction
unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)
B.
Discussion
Here, Plaintiff argues that both depositions
are needed and that Defendants was not willing to permit the discovery without
a court order, or at least was unwilling to commit to deposition dates until
after this motion had been filed. Plaintiff argues that without the driver
deposition, the driver and company would be free to appear at trial and testify
to any imaginable matter and Plaintiff would have no meaningful ability to
confront the evidence Defendants might present. Plaintiff argues she will be
prejudiced if defendant is not ordered to appear at the deposition or produce
the requested documents at the deposition.
In opposition, Defendant notes that it was
unaware of any incident involving it or any of its employees until it received
the lawsuit. As such, Defendant claims that it was waiting for Plaintiff to
respond to its propounded discovery to see who Defendant would need to produce.
Defendant notes that since receiving Plaintiff’s discovery responses, it has
agreed to produce its PMK for deposition and the deposition of Pat Allen is
currently scheduled for November 16, 2023, which is prior to the date set for hearing
this motion. Defendant notes they also have agreed to produce its driver,
Octaviano Vega, for deposition on an agreeable date in November or December
2023, but Plaintiff’s counsel has not selected available dates.
However, in Plaintiff’s reply brief, she
argues that Plaintiff’s counsel has no records of any correspondence where the
defense provided agreeable dates for deposition as to Octaviano Vega. The Court
notes that Defendant has not provided the Court with any proof that it has
“already agreed” to these dates. As such, Plaintiff’s Motion to Compel the
Depositions is GRANTED. A date certain and
time for the deposition(s) will be ordered at the hearing,
Sanctions
Pursuant to Code of Civil Procedure § 2025.240(g)(1),
if a motion to compel deposition is granted the Court shall impose a monetary
sanction in favor of the party who noticed the deposition and against the
deponent or party with whom the deponent is affiliated, 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. Plaintiff
argues that Defendant and/or their counsel should be sanction in the amount of $3,435
for their abuse of the discovery process in their refusal to appear for
deposition and provide documents responsive to this notice.
Defendant argues this Court should deny
Plaintiff’s request for sanctions, and instead, award Defendant sanctions in
the sum of $2,800 since Defendants did not know about the incident and did not
know the incident involved an alleged hit and run. The Court does not find this
argument to be particularly persuasive. Defendant need not receive Plaintiff’s
discovery responses in order to be able to show up and respond to a deposition.
Absent a court order or written stipulation of the parties to the contrary, a
responding party lacks the right to unilaterally delay its own responses to the
propounding party’s discovery or to produce a witness for deposition merely
because the responding party desires to complete some of its discovery
first. See Code of Civil Procedure § 2019.020(a)(“the
methods of discovery may be used in any sequence, and the fact that a party is
conducting discovery, whether by deposition or another method, shall not
operate to delay the discovery of any other party”.) The fact that the deponent may testify that
he has no knowledge of the incident does not change this rule.
Defendant has been put on notice of
Plaintiff’s allegations in the complaint to an extent. Additionally,
Plaintiff’s notice provides sufficient detail as to the documents and questions
being sought. As such, Defendant’s motion for sanctions is DENIED. However,
Plaintiff’s motion for sanctions is GRANTED in the amount of $1,000,
payable within 30 days.