Judge: Stephen P. Pfahler, Case: 22CHCV00048, Date: 2023-08-22 Tentative Ruling
Case Number: 22CHCV00048 Hearing Date: August 22, 2023 Dept: F49
Dept.
F-49
Date:
8-22-23 (Specially Set via 6-6-23 Minute Order)
Case
#22CHCV00048
Trial
Date: 10-2-23 c/f 7-17-23
COMPEL
MOVING
PARTY: Defendant, Andrew Alex
RESPONDING
PARTY: Third Party, Maria Ferrufino
RELIEF
REQUESTED
Motion
to Compel the Deposition of Marcus Ferrufino
Motion
to Compel Compliance with Deposition Subpoena for Personal Appearance and
Production of Documents
SUMMARY
OF ACTION
Plaintiff
Marcos Ferrufino alleges formation of an oral partnership agreement with defendant
Andrew Alex, whereby both parties would jointly operate the business and
equally share in expenses and revenue. Ferrufino alleges Alex breached the
agreement in failing to equally share sales proceeds. Ferrufino additionally
alleges fraud based on the sale of two “HAAS MACHINES” instead of transferring
title to the machines to Ferrufino after Ferrufino paid Alex over $180,000 for
sole ownership of the machines. Alex also allegedly sold the business entity
itself.
On
January 19, 2022, Plaintiff filed a complaint for Fraud and Breach of
Contract. On March 24, 2022, the court
sustained the demurrer to the complaint with 30 days leave to amend. On April
26, 2022, Plaintiff filed a first amended complaint for Fraud and Breach of
Contract. On August 3, 2022, the court sustained the demurrer to the first
amended complaint. Plaintiff filed the second amended complaint on August 23,
2022. On November 2, 2022, the court overruled the
demurrer to the first cause of action for breach of contract, and sustained the
demurrer without leave as to the second cause of action for fraud. The court
also granted the motion to strike with prejudice as to the breach of contract
cause of action for the prejudgment interest claim only. Defendant answered the
operative complaint on November 17, 2022.
RULING: Granted as to
Deposition and Sanctions/Denied as to Dismissal.
Defendant
Andrew Alex moves to compel the deposition of Marcus Ferrufino and to compel compliance
with a deposition subpoena served on third party Maria Ferrufino. The court
electronic filing system shows no opposition or reply at the time of the
tentative ruling publication cutoff.
Marcos
Ferrufino
A party may file a motion to compel deposition upon a
non-appearance of the noticed party. “If, after service of a deposition notice,
a party to the action … without having served a valid objection … fails to
appear for examination, or to proceed with it … the party giving the notice may
move for an order compelling the deponent's attendance and testimony…” (Code
Civ. Proc., §2025.450, subd. (a).) A party must object to a deposition no less
than three calendar days before deposition date. (Code Civ. Proc., §2025.410,
subd. (b).)
Marcos Ferrufino was served with a notice of deposition for
a date of May 5, 2023. Marcos Ferrurfino never objected to the date, and simply
failed to appear. [Declaration of Emily Manninger, Ex. C.] A certificate of
non-appearance was taken. [Id. Ex. D.] The court finds the unopposed motion
sufficiently complies with procedural requirements. The motion is granted.
The court orders to meet and confer on a new deposition
within 10 days of this order, with the deposition to be completed no later than
20 days from the date of this order. If the parties are unable to agree and/or
the deponent fails to appear again after the setting of the date, Plaintiff may
unilaterally pick a date, attempt to conduct the deposition, and take a
subsequent notice of non-appearance, if applicable. Any subsequent
non-appearance may constitute grounds for an evidentiary, issue or even
terminating sanction in favor of moving defendant. (Code Civ. Proc., §2025.450,
subd. (h).)
Sanctions entered against Marcos Ferrufino and counsel of
record, joint and several, for $500. (Code Civ. Proc., §2025.450, subd. (g).)
Payable within 30 days.
Maria
Ferrufino
On
April 24, 2023, the court granted the motion to compel compliance with the
deposition subpoena. The court ordered the deposition to occur within 30 days
of the order, with the parties to meet and confer. If the parties were unable
to agree, Defendant was given the option of the court assigning a date.
According to Defendant, Maria Ferrufino refused to cooperate on the setting of
any date, and therefore seeks further sanctions.
Given
the court granted the motion under Code of Civil Procedure section 1987.1, as
to Maria Ferrufino, a third party, the court addresses relief available. In
addition to seeking the setting of a contempt hearing, “A person failing
to appear pursuant to a subpoena or a court order
also forfeits to the party aggrieved the sum of five hundred dollars ($500),
and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena or court
order, which forfeiture and damages may be
recovered in a civil action.” (Code Civ. Proc., §§ 1992, 2020.240.)
The motion lacks any opposition, and therefore no justification
for the failure to seek compliance with the subpoena and court order. The court
imposes an additional $500 in sanctions against Maria Ferrufino.
Dismissal
The court finds insufficient support for a dismissal based on the
failure of Maria Ferrufino to appear for the court ordered deposition, and
Marcos Ferrufino failing to voluntarily appear before the subject court ordered
deposition. .” (Code Civ. Proc., §§ 2023.030, 583.410, subd. (a).)
Final Status
Conference and Jury Trial remain set for September 21, and October 2, 2023,
respectively.
Defendant
to give notice.