Judge Salvatore Sirna, Case Number: 21PSCV00721, Date: 2023-10-23 Tentative Ruling

Judge: Salvatore Sirna, Case: 21PSCV00721, Date: 2023-10-23 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 21PSCV00721 Hearing Date: February 8, 2024 Dept: G

Plaintiffs Carlota G. Cruz and Dora Cruz’s Motion for Order Compelling Defendant Esteban Cruz to Appear and Testify at Deposition and Request for Order Awarding Monetary Sanctions

Respondent: Defendant Esteban Cruz

TENTATIVE RULING

Plaintiffs Carlota G. Cruz and Dora Cruz’s Motion for Order Compelling Defendant Esteban Cruz to Appear and Testify at Deposition is GRANTED. Defendant Esteban Cruz’s counsel is ordered to meet and confer with Plaintiffs Carlota G. Cruz and Dora Cruz’s counsel on dates for a deposition within ten (10) days of the issuance of this order.

Furthermore, Plaintiffs Carlota G. Cruz and Dora Cruz’s Requests for Sanctions against Defendant Esteban Cruz and Defendant Esteban Cruz’s counsel are GRANTED in the amount of $847.50, payable within thirty (30) days of the issuance of this order.

BACKGROUND

This is an action arising from a dispute over a family trust. In September 1998, Carlota G. Cruzand Carlota’s husband, Antonio V. Cruz, formed The Antonio V. Cruz and Carlota G. Revocable Trust (Cruz Trust) and are trustees of the Cruz Trust. In December 2012, Carlota and Antonio Cruz amended the Cruz Trust. All of Carlota and Antonio Cruz’s assets and real property were allegedly placed under the Cruz Trust. Due to their advanced age and medical conditions, Carlota and Antonio Cruz became more dependent on their family members and currently live in Pomona with Dora Cruz, their daughter. Carlota and Antonio Cruz also have a son named Esteban Cruz who is married to Ruth Cruz. Through Esteban and Ruth Cruz, Carlota and Antonio Cruz also have a granddaughter named Wendy Cruz.

Esteban and Ruth Cruz allegedly reside in residential property owned by Carlota and Antonio Cruz and have allegedly failed to (1) pay for property insurance on the residence and (2) pay property taxes. In March 2021, Carlota Cruz learned Antonio Cruz had made changes to Antonio Cruz’s health plan, allegedly at the behest of Esteban and Ruth Cruz. Carlota Cruz also learned Antonio Cruz had closed bank accounts and changed his mailing address to Esteban and Ruth Cruz’s address. Previously in February 2021, Carlota and Antonio Cruz had agreed that Esteban Cruz would assist in collecting rent from rental homes belonging to the Cruz Trust. However, Esteban, Ruth, and Wendy Cruz allegedly began managing the properties and intimidating tenants to force tenants to move out or pay rent.

On September 1, 2021, Carlota Cruz, as an individual and trustee of the Cruz Trust, filed a complaint against Esteban and Ruth Cruz, Wendy Cruz, and Does 1-20, alleging the following causes of action: (1) elder abuse, (2) conversion, (3) accounting, (4) restitution, and (5) declaratory relief.

On July 21, 2022, Esteban and Ruth Cruz filed a cross-complaint against Carlota and Dora Cruz as trustees of the Cruz Trust, alleging the following causes of action: (1) defamation, (2) elder abuse, and (3) intentional interference with right of inheritance.

On August 29, 2022, Carlota and Dora Cruz filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action.

On September 13, 2022, Esteban and Ruth Cruz filed a First Amended Cross-Complaint (FACC) against the Carlota and Dora Cruz and Roes 1-10, alleging the same causes of action. On October 23, 2023, the court sustained Carlota and Dora Cruz’s demurrer to the FACC in part with leave to amend.

On November 13, 2023, Esteban and Ruth Cruz filed a Second Amended Cross-Complaint (SACC) against the same defendants alleging the same causes of action. On December 15, Carlota and Dora Cruz filed a demurrer to the SACC.

On January 3, 2024, Carlota and Dora Cruz filed the present motion. A hearing on the present motion is set for February 8 with a case management conference on February 29.

ANALYSIS

Carlota and Dora Cruz move to compel Esteban Cruz’s attendance at depositions they have previously noticed and also request sanctions on Esteban Cruz and Esteban Cruz’s counsel.

Legal Standard

Code of Civil Procedure section 2025.450, subdivision (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 to compel must set forth specific facts showing good cause justifying the production of the requested documents in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(1).) Good cause is construed liberally and has been found where documents are necessary for trial preparation. (See Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 587.) The motion must also “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce document . . . by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

If the motion to compel is granted, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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 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).) However, “absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.” (Code Civ. Proc., § 2025.450, subd. (i)(1).)

Discussion

In April and May of 2023, Carlota and Dora Cruz’s counsel attempted to meet and confer with Esteban Cruz’s counsel regarding potential dates for Esteban Cruz’s deposition. (Ruiz Decl., ¶ 3; Karr Decl., ¶ 4.) After Esteban Cruz’s counsel failed to provide any dates for the deposition, Carlota and Dora Cruz’s counsel served a notice of deposition by mail on May 12 that set the deposition for June 27. (Karr Decl., ¶ 5-6, Ex. 2.) On June 13, Esteban Cruz’s counsel served an objection to the June 27 deposition by mail and electronic transmission that claimed Carlota and Dora Cruz’s counsel had failed to consult Esteban Cruz’s counsel regarding a date for deposition. (Karr Decl., ¶ 7-8, Ex. 3.)

Although Carlota and Dora Cruz’s counsel asserts this objection was meritless, counsel continued to meet and confer with Esteban Cruz’s counsel on future deposition dates. (Karr Decl., ¶ 10-13.) In August 2023, Carlota and Dora Cruz’s counsel states Esteban Cruz’s counsel offered November 7 as an available date for Esteban Cruz’s deposition. (Karr Decl., ¶ 13.) But while counsel referenced Exhibit 7 of counsel’s declaration, the court notes there is no evidence of Esteban Cruz’s counsel agreeing to November 7 as a potential deposition date. (Karr Decl., ¶ 13, Ex. 7.) Furthermore, Esteban Cruz’s counsel provided a contrary declaration, stating counsel never agreed to November 7 as a deposition date. (Gilanians Decl., ¶ 12.)

On September 7, 2023, Carlota and Dora Cruz’s counsel served an amended notice of deposition by mail that set Esteban Cruz’s deposition for November 7. (Karr Decl., ¶ 13-14, Ex. 8.) On November 3, Esteban Cruz’s counsel served an objection to the November 7 deposition by email that claimed counsel had a calendar conflict with that deposition date and that Esteban Cruz will agree to appear at a future date and time that is mutually agreeable. (Karr Decl., ¶ 15, Ex. 9.) In an email to Carlota and Dora Cruz’s counsel on November 6, Esteban Cruz’s counsel confirmed that Esteban Cruz would not be appearing for the November 7 deposition and promised to obtain “some new dates as soon as I have a chance to meet with my client.” (Karr Decl., ¶ 20, Ex. 12.) Subsequently, Carlota and Dora Cruz’s counsel state Esteban Cruz’s counsel failed to do so, necessitating the present motion. (Karr Decl., ¶ 20-21.)

While Esteban Cruz did file an objection to the November 7 deposition, Carlota and Dora Cruz argue it was untimely and improper. Pursuant to Code of Civil Procedure section 2025.410, subdivision (a), “[a]ny party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.” When service is conducted by mail, it must be done at least five days before the notice was due if the mailing address is within California. (Code Civ. Proc., § 1013, subd. (a).) When service is conducted by email, it must be done at least two court days before the notice was due. (Code Civ. Proc., § 1010.6, subd. (a)(3)(B).)

Here, Carlota and Dora Cruz argue Esteban Cruz failed to serve them with a timely mailed notice of Esteban Cruz’s objection to the November 7 deposition. (Karr Decl., ¶ 15-16.) When the assistant for Esteban Cruz’s counsel emailed the objection on November 3, the assistant did note “the attached will follow by U.S. mail.” (Karr Decl., Ex. 11.) Esteban Cruz’s counsel also claims notice was given on November 3 “by email and U.S. mail.” (Gilanians Decl., ¶ 7.) But in opposing Carlota and Dora Cruz’s motion, Esteban Cruz failed to provide any proof of service that shows the objection was actually timely mailed. And even if the declaration of Esteban Cruz’s counsel was sufficient, it failed to establish that the objection was mailed eight days prior to November 7 as required in Code of Civil Procedure section 1013, subdivision (a). Thus, based on the facts before the court, Esteban Cruz failed to serve a timely objection to the November 7 deposition by mail.

While Esteban Cruz’s counsel also served the objection by email on November 3, Carlota and Dora Cruz argue they never agreed to service by email. Esteban Cruz’s counsel does not contest this assertion in counsel’s declaration and even if email service was proper, the email service was not completed by November 2 as required by Code of Civil Procedure section 1010.6, subdivision (a)(3)(B). Because Esteban Cruz failed to timely object to the November 7 deposition, Esteban Cruz has waived any challenge to the deposition and was required to be in attendance. (Code Civ. Proc., § 2025.410, subd. (a).)

Accordingly, Carlota and Dora Cruz’s motion to compel Esteban Cruz’s deposition is GRANTED and Esteban Cruz’s counsel is ordered to meet and confer with Carlota and Dora Cruz’s counsel on dates for Esteban Cruz’s deposition within ten (10) days of the issuance of this order.

Carlota and Dora Cruz also request an award of sanctions. As part of their request for costs, Carlota and Dora Cruz claim a $795 cancellation fee for a Spanish interpreter that was incurred as a result of Esteban Cruz’s failure to appear for the November 7 deposition. (Karr Decl., ¶ 21, Ex. 14.) But while Carlota and Dora Cruz’s reply brief argues this expense was reasonable because Esteban Cruz’s first and main language is Spanish, they fail to provide any evidence to support this claim and the arguments of counsel alone have no evidentiary value. According to their own deposition notice, an interpreter would only be required if Esteban Cruz’s counsel requested one prior to the deposition. (Karr Decl., Ex. 8, p. 2:8-11.) Because there is no evidence that Esteban Cruz’s counsel requested an interpreter, the presence of an interpreter was not required for the deposition. And while Carlota and Dora Cruz were certainly not prevented from hiring their own interpreter to prevent a potential deposition from delay, they cannot shift that cost onto Esteban Cruz.

Under the circumstances presented, the court finds sanctions are warranted as to Esteban Cruz and Esteban Cruz’s counsel. Accordingly, utilizing a lodestar approach and in view of the totality of the circumstances, the court awards sanctions and finds reasonable attorney fees and costs in the total amount of $847.50 (1.5 hours for drafting the motion, 1.0 for reviewing the opposition and drafting the reply, and 1.0 for attending the hearing at an hourly rate of $225 an hour plus $60.00 in filing fees). Sanctions are payable to plaintiffs’ counsel in thirty (30) days.