Judge Salvatore Sirna, Case Number: 23PSCV03628, Date: 2025-03-03 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV03628, Date: 2025-03-03 Tentative Ruling

Case Number: 23PSCV03628 Hearing Date: March 3, 2025 Dept: G

Defendants Matthew Munoz and Javan Frausto’s Motion to Compel Plaintiff to Appear and Testify at Deposition and for Sanctions

Respondent: NO OPPOSITION

TENTATIVE RULING

Defendants Matthew Munoz and Javan Frausto’s Motion to Compel Plaintiff to Appear and Testify at Deposition is GRANTED. Plaintiff Mercedes Avilez’s counsel is ordered to meet and confer with Defendants Matthew Munoz and Javan Frausto’s counsel on dates for a deposition within ten (10) days of the issuance of this order.

Furthermore, Defendants Matthew Munoz and Javan Frausto’s Requests for Sanctions against Plaintiff Mercedes Avilez and Plaintiff Mercedes Avilez’s counsel are GRANTED in the amount of $3,705.00, payable within thirty (30) days of the issuance of this order.

BACKGROUND

This is a personal injury action arising from a motor vehicle collision. On November 20, 2023, Plaintiff Mercedes Avilez filed a complaint against Defendants Matthew Munoz, Javan Frausto, and Does 1-100, alleging causes of action for (1) motor vehicle negligence and (2) general negligence.

On December 5, 2024, Munoz and Frausto filed the present motion. A hearing on the present motion is set for March 3, 2025, with a post-mediation status conference/trial setting conference on May 15, 2025.

ANALYSIS

Munoz and Frausto move to compel Avilez’s attendance at depositions they have previously noticed and also request sanctions on Avilez and Avilez’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

On February 12, 2024, Munoz and Frausto served a notice of deposition that requested Avilez’s attendance at a deposition set for April 9, 2024. (Zadoorian Decl., ¶ 2, Ex. A.) Avilez’s counsel emailed Munoz and Frausto’s counsel on March 11, 2024, stating counsel was unavailable for the date noticed. (Zadoorian Decl., ¶ 3, Ex B.) On May 7, 2024, Munoz and Frausto served an amended notice of deposition that requested Avilez’s attendance at a deposition set for June 4, 2024. (Zadoorian Decl., ¶ 4, Ex. C.) Avilez’s counsel confirmed the deposition on May 15, 2024, and requested a Spanish interpreter. (Zadoorian Decl., ¶ 5, Ex. D.) Avilez and Avilez’s counsel then failed to appear for the deposition and in response to an email from Munoz and Frausto’s counsel, Avilez’s counsel acknowledged they missed the deposition and promised to pay the deposition fees. (Zadoorian Decl., ¶ 6-7, Ex. E-F.) On July 7, 2024, Munoz and Frausto served a second amended notice of deposition on Avilez that set Avilez’s deposition for August 9, 2024. (Zadoorian Decl., ¶ 8, Ex. G.) Although Avilez’s counsel did not object to the deposition, neither Avilez nor Avilez’s counsel appeared for the deposition on August 9, 2024. (Zadoorian Decl., ¶ 9-10, Ex. H.) Munoz and Frausto’s counsel then attempted to contact Avilez’s counsel without success. (Zadoorian Decl., ¶ 11, Ex. I.)

On October 14, 2024, Munoz and Frausto filed a request for an informal discovery conference (IDC). (Zadoorian Decl., ¶ 12, Ex. J.) In their supporting brief filed on October 29, 2024, they requested the court compel Avilez’s deposition due to Avilez’s previous failures to appear. (Zadoorian Decl., ¶ 14, Ex. L.) Avilez did not file a response and did not appear for the IDC. (Zadoorian Decl., ¶ 14-15.) On November 7, 2024, the court held an IDC and ordered Avilez’s deposition to take place on or before December 13, 2024. (Zadoorian Decl., ¶ 15, Ex. M.) On November 7, 2024, Munoz and Frausto served notice of the IDC ruling and a third amended deposition notice on Avilez that set Avilez’s deposition for December 4, 2024. (Zadoorian Decl., ¶ 16-17, Ex. N-O.) Although Avilez’s counsel did not object to the deposition, neither Avilez nor Avilez’s counsel appeared for the deposition on December 4, 2024. (Zadoorian Decl., ¶ 18-19, Ex. P.)

Based on Avilez’s failure to appear for three noticed depositions without timely objection, the court GRANTS Munoz and Frausto’s motion to compel Avilez’s deposition. Avilez’s counsel is ordered to meet and confer with Munoz and Frausto’s counsel on dates for Avilez’s deposition within ten (10) days of the issuance of this order.

Munoz and Frausto also request $3,975.00 in sanctions. They request $2,895.00 in costs that include $60.00 in filing fees for the present motion, $995.00 in court reporter fees for the three missed depositions, and $1,840.00 for the costs of a Spanish interpreter. They also request $1,080.00 in attorney fees for three (3) hours spent drafting the present motion and one (1) hour drafting a reply and attending the hearing at an hourly rate of $270.00. The court finds sanctions are warranted against Avilez and Avilez’s counsel. Accordingly, the court awards costs in the amount of $2,895.00 and reasonable attorney fees in the amount of $810.00 (2.0 hours for drafting the present motion and 1.0 hours for attending the hearing at an hourly rate of $270.00) for a total of $3,705.00.

CONCLUSION

Furthermore, Defendants Matthew Munoz and Javan Frausto’s Requests for Sanctions against Plaintiff Mercedes Avilez and Plaintiff Mercedes Avilez’s counsel are GRANTED in the amount of $3,705.00, payable within thirty (30) days of the issuance of this order.