Judge: Serena R. Murillo, Case: 19STCV00838, Date: 2022-10-14 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 

IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV00838    Hearing Date: October 14, 2022    Dept: 29

Blanca E. Gutierrez v. Southern California Regional Rail Authority

Motion to Compel Attendance at Deposition and Request for Sanctions filed by Defendant Southern California Regional Rail Authority dba Metrolink

TENTATIVE 

Defendant Southern California Regional Rail Authority dba Metrolink’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Blanca E. Gutierrez is ordered to appear for deposition within 30 days of this order. The request for sanctions is GRANTED. Plaintiff Blanca E. Gutierrez and counsel of record Edward Pfiester, Jr. are ordered to pay monetary sanctions in the amount of $700, jointly and severally, within 30 days of this order.

Legal Standard 

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

CCP section¿2025.450(a) provides:¿“If, after service of a deposition notice, a party to the action . . . , 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 . . . 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 . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450(a).) 

CCP section¿2025.450(b) provides:¿“A motion under subdivision (a)… 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.”¿ (Id., § 2025.450(b).) 

Discussion 

Defendant argues that it noticed the deposition of Plaintiff on four instances, and Plaintiff failed to appear for all of them. (Krutcik Decl., ¶ 3.) After three failed attempts, defense counsel conferred with opposing counsel and set up an April 21, 2022 date to take Plaintiff’s deposition. (Id.) On March 23, 2022, Defendant served a fourth notice of deposition of Plaintiff, scheduled for April 21, 2022. (Id., Exh. A.) However, Plaintiff again failed to appear. (Id., ¶ 3.)

As Plaintiff was properly served with the notice of deposition, did not properly object under CCP section 2025.410, failed to appear, and failed to file an opposition to this motion, the motion to compel Plaintiff to appear for deposition is GRANTED.  Plaintiff is ordered to appear for deposition within 30 days of this order.

Sanctions

If a motion under CCP section¿2025.450(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 the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP section¿2025.450(g)(1).)

As the motion to compel Plaintiff’s deposition is granted, and Plaintiff has not filed an opposition to explain any basis in failing to appear, Defendant’s request for sanctions is granted, but in a reduced amount due to the simplicity of the motion and because there was no opposition. Thus, the Court imposes sanctions against Plaintiff and counsel of record Edward Pfiester, Jr., in the amount of $700 ($350 per hour, for 2 hours), jointly and severally, to be paid within 30 days of this order

Conclusion 

Accordingly, Defendant’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Blanca E. Gutierrez is ordered to appear for deposition within 30 days of this order. The request for sanctions is GRANTED. Plaintiff Blanca E. Gutierrez and counsel of record Edward Pfiester, Jr. are ordered to pay monetary sanctions in the amount of $700, jointly and severally, within 30 days of this order.

Moving party is ordered to give notice.