Judge: Steven A. Ellis, Case: 19STCV29995, Date: 2025-01-06 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: 19STCV29995    Hearing Date: January 6, 2025    Dept: 29

Cawley v. Almache
19STCV29995
Plaintiffs’ Motion to Compel the Deposition of Defendant Jonathan A. Almache

Tentative

The motion is granted.

The request for sanctions is granted in part.

Background

The procedural history of these matters (including the related and consolidated cases) is somewhat complex, and the Court will not attempt to summarize that history here.

As is particularly relevant here, in the lead case, Matthew Cawley filed the complaint on August 22, 2019 against Jonathan Alexander Almache (“Defendant”), Viviana Almache, and Does 1 through 100.

Four days later, in one of the consolidated cases, Plaintiffs Joselyn Pham, Steven Uy and Jeffrey Zhu (“Plaintiffs”) filed a complaint against Lyft, Inc. Matthew Cawley, Defendant, Viviana Almache, and Does 1 through 100.

On November 12, 2024, 2024, Plaintiffs filed this motion to compel the deposition of Defendant. Plaintiffs also request sanctions.

Defendant filed an opposition on November 22, 2024.

The case was previously assigned to Department 32 and was transferred to Department 29 on or about December 9, 2024.

Legal Standard

“Any party may obtain discovery … by taking in California the oral deposition of any person, including any party to the action.”  (Code Civ. Proc., § 2025.010.)  Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served. 

“The service of a deposition notice … is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”  (Id., § 2025.280, subd. (a).)

Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280.

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.” 

Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied “by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Id., subd. (b).) 

When a 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.”  (Id., § 2025.450, subd. (g)(1).) 

In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines “[m]isuses of the discovery process” to include “[f]ailing to respond to or to submit to an authorized method of discovery.”  Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  (Id., § 2023.030, subd. (a).)

Request for Judicial Notice

The Court grants Defendant’s request for judicial notice.

Discussion

On July 10, 2024, Plaintiffs served a deposition notice for Defendant, which was later taken off-calendar. (Hernandez Decl. ¶ 9.) On August 30, 2024, Plaintiffs served another notice of Defendant, set for September 13, 2024. (Id. ¶ 10, Exh. 3.) On September 9, 2024, counsel for Defendant asserted they could not contact Defendant, and stated he would likely not appear at the deposition. (Id. ¶ 11.) On September 13, 2024, Defendant did not appear for the deposition and a certificate of non-appearance was obtained. (Id. ¶ 12, Exh. 5.)

Plaintiffs properly noticed the deposition of Defendant.  Defendant failed to appear or object.  According, the motion to compel the deposition of Defendant is granted.

Plaintiffs request monetary sanctions against Defendant only (not his counsel of record).  That request is granted in part.  Given the straightforward nature of this motion, the Court sets sanctions in the amount of $1,036.75, calculated based on two hours of attorney time, multiplied by a reasonable billing rate of $350 per hour for work of this nature, plus court reporter fees of $276.75 for the certificate of nonappearance and the filing fee of $60.

Conclusion

The Court GRANTS Plaintiffs’ motion to compel the deposition of Defendant Jonathan A. Almache.

The Court ORDERS Defendant Jonathan A. Almache to appear for deposition and give testimony under oath at 10:00 am on January __, 2025, by Zoom video conference. 

The Court ORDERS Plaintiffs Joselyn Pham, Steven Uy, and Jeffrey Zhu to provide a link for the deposition to Defendant Jonathan A. Almache and to all parties entitled to notice at least 48 hours in advance of the deposition.

The Court GRANTS IN PART Plaintiff’s request for sanctions. 

The Court ORDERS Defendant Jonathan A. Almache to pay monetary sanctions under the Civil Discovery Act to Plaintiffs Joselyn Pham, Steven Uy, and Jeffrey Zhu (through counsel) in the amount of $1,036.75 within 30 days of notice.

Moving parties to give notice.