Judge: Serena R. Murillo, Case: 19STCV28045, Date: 2022-09-20 Tentative Ruling

Case Number: 19STCV28045    Hearing Date: September 20, 2022    Dept: 29

Esperanza Reyes Garcia v. Rains and Sons Express, LLC

Tuesday, September 20, 2022

Motions to Compel Deposition of Defendant filed by Plaintiff Esperanza Reyes Garcia

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TENTATIVE

Plaintiff Esperanza Reyes Garcia’s motion to compel the deposition of Defendant is GRANTED. Defendant Jerry Hood is ordered to appear for deposition within 30 days of this order. Plaintiff’s request for sanctions is GRANTED. Defendant Jerry Hood and counsel of record Kevin P. McNamara are ordered to pay monetary sanctions in the amount of $661.65, jointly and severally, within 30 days of this order.

Legal Standard 

CCP section¿2025.450(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 . . . 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 2025.410(a) provides: “Any 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.”  (Code Civ. Proc., § 2025.410(a).) 

CCP section¿2025.450(b) provides:¿“A motion under subdivision (a) shall comply with both of the following:¿ 

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, y a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿ 

(Id., § 2025.450(b).) 

CCP section¿2025.450(c) provides, “(1) If 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 the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Id., § 2025.450(c).) 

CCP section 2023.030(a) provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . .¿If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the¿sanction unjust.”¿¿Failing to respond¿or to submit to an authorized method of discovery is a misuse of the discovery process.¿ (Id., § 2023.010(d).) 

Discussion

On November 27, 2019, Plaintiff served a notice of deposition for Hood set for January 20, 2020. (Chun Decl., ¶ 7, Exh. A.) On January 10, 2020, Defense counsel served an objection to the deposition because it was unilaterally noticed, and stated that he would meet and confer with Plaintiff’s counsel to reschedule the same. (Id., ¶ 8, Exh. B.) No meet and confer occurred, and the deposition was taken off calendar. (Id.) On March 7, 2022, Plaintiff served a second notice of deposition for Hood set for April 12, 2022. (Id., ¶ 9, Exh. C.) On April 8, 2022, Defense counsel once again served an objection to the deposition of Hood. (Id., ¶ 10, Exh. D.) On April 12, 2022, Plaintiff’s counsel obtained a Certificate of Nonappearance for HOOD’s failure to appear at his deposition. (Id., ¶ 11, Exh. E.) On June 28, 2022, Plaintiff’s counsel sent an email to Defense counsel requesting dates for the deposition and offering additional time if Defense counsel needed the same. (Id., ¶ 12, Exh. F.) On July 2, 2022, Defense counsel responded and stated that he would get back to Plaintiff’s counsel with dates shortly, yet dates were never provided thereafter. (Id., ¶ 13, Exh. G.) On July 8, 2022, Plaintiff’s counsel and Defense counsel telephonically met and conferred, wherein, again, Defense counsel could not produce and dates/times for Hood’s deposition, and a trial continuance was agreed upon contingent upon this Court’s approval, and potential mediation was discussed. (Id., ¶ 15.) During said meet and confer, Defense counsel stated that he would provide dates again. (Id.) Defense counsel further stated that Hood, as a commercial truck driver, was on the road often and was not able to provide a date/time/location for his deposition. (Id.) On July 15, 2022, Plaintiff’s counsel emailed Defense counsel and offered to pay for a satellite office to accommodate Hood for his remote deposition, such that Hood would only have to appear at the designated location. (Id., ¶17, Exh. J.) Defense counsel could not provide any dates/times for Hood’s deposition because he was a commercial truck driver. (Id., ¶ 18, Exh. K.)

Defendant opposes and contends the motion should be denied because it served an objection to the deposition notice because the motion was unilaterally set. (McNamara Decl., ¶ 4.) Defendant argues that Plaintiff’s counsel offered available dates to Defendants’ counsel, one of which was accepted by Defendant Hood. Plaintiff’s counsel then advised he was unavailable on the date despite previously being offered by him. (Id., ¶ 5.) Defendant also argues that Defendant Hood no longer works for Defendant Rains and Sons and that he is a commercial truck driver which makes it difficult to appear for deposition. (Id., ¶ 6.)

In reply, Plaintiff argues that the date offered was only for the afternoon, but Defendant accepted the date for the morning, when it knew Plaintiff was unavailable at that time. (Chun Decl., ¶ 6.)

Defendants’ objection is that the deposition was unilaterally noticed by Plaintiff’s counsel, in violation of Los Angeles Superior Court Local Rule, rule 3.26 and Appendix, 3.A(e)(2) which requires parties to give “reasonable consideration” in accommodating schedules of opposing counsel and the deponent, where possible to do so.  (Chun Decl. Exh. B.)  The objection adds that Defendant is not available on the date noticed.  (Id.)  Plaintiff’s counsel, however, attests to and presents evidence of his efforts to request deposition dates from Defendants’ counsel beginning in November of 2019.  (Id. ¶ 7, Ex. A.)  The court has reviewed the parties’ correspondence and finds that Plaintiff’s counsel’s efforts were sufficient to meet the requirements of the local rule. As such, the court finds that Defendant’s served objections were not valid. Moreover, while defense counsel argues that Defendant is a truck driver and has limited availability, Plaintiff’s counsel has offered to pay for a satellite office to accommodate Hood for his remote deposition and has stated it should not take longer than three hours. Thus, there is no reason why Hood cannot appear. Plaintiff is entitled to this discovery and there is no justification for failing to appear.

Therefore, the motion is granted. Defendant Jerry Hood is ordered to appear for deposition within 30 days of this order. Because the motion is granted, Plaintiff’s request for sanctions is also granted, but in a reduced amount due to the simplicity of the motion. Therefore, Defendant Jerry Hood and counsel of record Kevin P. McNamara are ordered to pay monetary sanctions in the amount of $661.65 ($300 per hour, for 2 hours, plus $61.65 in filing fees), jointly and severally, within 30 days of this order.

Conclusion

Accordingly, Plaintiff’s motion to compel the deposition of Defendant is GRANTED. Defendant Jerry Hood is ordered to appear for deposition within 30 days of this order. Plaintiff’s request for sanctions is GRANTED. Defendant Jerry Hood and counsel of record Kevin P. McNamara are ordered to pay monetary sanctions in the amount of $661.65, jointly and severally, within 30 days of this order.

Moving party is ordered to give notice.