Judge: Steven A. Ellis, Case: 20STCV42086, Date: 2024-09-04 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: 20STCV42086    Hearing Date: September 4, 2024    Dept: 29

Arrowood v. Schroeter
20STCV42086
Defendants’ Motion to Compel Plaintiffs to Appear for Deposition
Motion to Continue Trial

Tentative

The motion to compel is GRANTED.  The request for sanctions is GRANTED in part.

The motion to continue trial is DENIED.

Background

On November 3, 2020, Bradley Arrowwood and Lovie Jones (collectively “Plaintiffs”) filed a complaint against Carl Schroeter (“Defendant”) and Does 1 through for negligence arising out of an automobile accident occurring on February 19, 2020.

On April 23, 2021, Defendant filed an answer.

On August 2, 2024, Defendant filed the motion to compel Plaintiffs’ deposition. An amended motion was filed on August 5. Defendant also seeks sanctions.  No opposition has been filed.

On August 6, Defendant filed the motion to continue trial. No opposition has been filed.

Legal Standard

Motion to Compel Deposition

“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).)Code of Civil Procedure § 2025.450(a) provides:

Motion to Continue

Code of Civil Procedure section 128, subdivision (a)(8), provides that the court has the power to amend and control its process and orders so as to make them conform to law and justice. “The power to determine when a continuance should be granted is within the discretion of the trial court.” (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) “A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances.” (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.) 

“To ensure the prompt disposition of civil cases, the dates assigned for trial are firm.  All parties and their counsel must regard the date set for trial as certain.”  (Cal. Rules of Court, rule 3.1332(a).)

“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits.”  (Cal. Rules of Court, rule 3.1332(c).)  “The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.”  (Ibid.)  Circumstances that may support a finding of good cause include: 

“(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; 

(2) The unavailability of a party because of death, illness, or other excusable circumstances; 

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; 

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; 

(5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; 

(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or 

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” 

(Cal. Rules of Court, rule 3.1332(c).) 

“In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination.”  (Cal. Rules of Court, rule 3.1332(d).)  California Rules of Court, rule 3.1332(d) sets forth a non-exhaustive list of factors that the court may consider: 

“(1) The proximity of the trial date; 

(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; 

(3) The length of the continuance requested; 

(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; 

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7) The court's calendar and the impact of granting a continuance on other pending trials;

(8) Whether trial counsel is engaged in another trial; 

(9) Whether all parties have stipulated to a continuance; 

(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and 

(11) Any other fact or circumstance relevant to the fair determination of the motion or application.” 

(Cal. Rules of Court, rule 3.1332(d).)

Discussion

Motion to Compel

In May 2024, Defendant served notices setting the deposition of Plaintiff Arrowood for June 14 and Plaintiff Jones for June 19.  (Klein Decl., ¶ 4 & A.) After communication with Plaintiffs’ counsel, Defendant agreed to continue the depositions.  (Id., ¶ 5.) 

On July 5, 2024, Defendant served notices setting the deposition of Plaintiff Arrowood for July 18 and Plaintiff Jones on July 19.  (Id., ¶ 8 & Exh. E.) Plaintiffs failed to appear. (Id., ¶ 9 & Exh. F.) On July 30, 2024, Defense counsel reached out to Plaintiffs about their non-appearance. (Id., ¶ 10.)

Defendant has shown the these depositions were properly noticed, no objection was served, and Plaintiffs failed to appear.  All substantive and procedural requirements for the motion are satisfied.  The motion is granted.

Defendant’s request for sanctions is granted in part.  Defendant’s motion to compel is granted, Plaintiffs and their counsel have not acted with substantial justification, and the imposition of sanctions would not be unjust.  In light of the straightforward nature of this motion, the Court sets sanctions in the total amount of $872.50, based on 2.5 hours of attorney time, multiplied by counsel’s reasonable billing rate of $325 per hour, plus a $60 filing fee.  (See Klein Decl., ¶ 12.)  Sanctions are imposed on each of the two Plaintiffs in half of that amount; the sanctions are also imposed, jointly and severally, on Plaintiffs’ counsel.

Motion to Continue Trial

Defendant seeks a trial continuance based on his inability to take Plaintiffs’ depositions. (Klein Decl., ¶ 12.) Defendant answered Plaintiffs’ complaint over three years ago, the trial date has already been continued numerous times, but Defendant did not notice Plaintiffs’ depositions until May 2024.  (Id., ¶ 5.)

Defendant does not explain the lack of diligence in pursuing the depositions of Plaintiffs. 

Defendant now seeks to depose Plaintiffs.  The Court, in this order, is setting the deposition of each Plaintiff on September 9, the date requested by Defendant.

Defendant also asserts that depending on what Plaintiffs say in their depositions, Defendant may also seek further discovery, including medical examinations.  But Defendant has had years to seek the medical examinations of Plaintiffs, and the mere possibilities that Defendant might seek further discovery based on what Plaintiffs might say in their depositions is not a basis for a continuance.

The Court has considered all of the relevant facts and circumstances and finds that Defendant has not shown good cause to continue the trial.  The motion is denied.

Conclusion

The Court GRANTS Defendant’s Motion to Compel Plaintiffs’ Depositions.

The Court ORDERS Plaintiff Bradley Arrowood to appear for deposition and give testimony under oath at 9 a.m. on September 9, 2024 at 515 South Flower Street, 18^th Floor, Los Angeles, CA 90071.

The Court ORDERS Plaintiff Lovie Jones to appear for deposition and give testimony under oath at 1:30 p.m. on September 9, 2024 at 515 South Flower Street, 18^th Floor, Los Angeles, CA 90071.

The Court ORDERS Plaintiff Bradley Arrowood and counsel of record, Law Offices of D. Hess Panah & Associates, jointly and severely, to pay $436.25 in sanctions under the Civil Discovery Act to Defendant within 30 days of notice.

The Court ORDERS Plaintiff Lovie Jones and counsel of record, Law Offices of D. Hess Panah & Associates, jointly and severely, to pay $436.25 in sanctions under the Civil Discovery Act to Defendant within 30 days of notice.

The Court notes that Defendant filed a single motion for what should have been two separate motions as to the motions to compel form interrogatories and special interrogatories. Combining discovery motions allows the moving party to avoid paying the requisite filing fees. Filing fees are jurisdictional and it is mandatory for court clerks to demand and receive them. (See Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 460.)

Accordingly, the Court ORDERS Defendant to pay an additional filing fee of $60 to the Clerk of the Court and to file proof of payment within 14 days of the hearing.

The Court DENIES Defendant’s motion to continue trial. 

Moving party is ORDERED to give notice by email of this ruling by no later than 5:00 pm on September 4.