Judge: Steven A. Ellis, Case: 21STCV00910, Date: 2024-02-29 Tentative Ruling

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

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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: 21STCV00910    Hearing Date: February 29, 2024    Dept: 29

Defendant’s Motion to Compel Deposition of Plaintiff

 

Tentative

 

The motion is granted.

 

The request for sanctions is granted in part.

 

Background

 

On January 8, 2021, Plaintiff Bethany Estrada (“Plaintiff”)  filed a complaint against Defendant Richard Estrada (“Defendant”) and Does 1 through 10 for general negligence and motor vehicle negligence. The complaint alleges that on January 19, 2021, Plaintiff was sitting in the right front passenger seat of the motor vehicle owned and driven by Defendant when Defendant suddenly and without warning, negligently veered right, off US-395, across the asphalt shoulder, down an embankment, striking a metal fence.

On October 12, 2023, Defendant served Plaintiff with a notice of deposition, setting her deposition for October 23, 2023.  (Mendoza Decl., ¶ 3 & Exh. A.)  On October 17, Defendant advised that the deposition needed to be rescheduled, and after an exchange of emails, the deposition was renoticed for November 29, 2023.  (Id., ¶¶ 4-5 & Exh. C.)

On the eve of the deposition, Plaintiff’s counsel advised that Plaintiff was not feeling well.  After an exchange of emails, the deposition was renoticed for December 20, 2023.  (Id., ¶¶ 6-7 & Exh. E.)

On the eve of the deposition, Plaintiff’s counsel advised that the deposition needed to be rescheduled because one of Plaintiff’s attorneys had contracted COVID-19.  (Id., ¶ 8 & Exh. F.)

On December 28, 2023, Defendant filed this motion to compel Plaintiff’s deposition.

 

No opposition has been filed.

 

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.

“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.”  (Id.,  § 2025.450, subd. (a).)  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., § 2025.450, 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).) 

Discussion

After two prior attempts to schedule Plaintiff’s deposition, Defendant served a notice of Plaintiff’s deposition scheduled for December 20, 2023. (Mendoza Decl., ¶ 7 & Exh. E.)  Plaintiff did not serve any objection, but, on the day before the deposition, Plaintiff’s counsel advised they needed to reschedule Plaintiff’s deposition, because one of their attorneys had contracted COVID-19. (Id. at ¶ 8, Exh. F.)

The motion to compel Plaintiff’s deposition is granted.  Plaintiff failed to appear for her properly noticed deposition without service of a timely objection.

The request for sanction is also granted in part.  Plaintiff has not opposed the motion, and there is no evidence in the record that the conduct of Plaintiff and her attorney was substantially justified or that the imposition of sanctions would be unjust.  Given the relatively straightforward nature of a motion to compel a deposition, the Court sents sanctions in the amount of $420, calculated based on two hours of attorney time, multiplied by counsel’s reasonable billing rate of $180 per hour, plus a $60 filing fee.  (Mendoza Decl., ¶ 10.)

Conclusion

 The Court GRANTS the motion to compel Plaintiff’s deposition.

The Court ORDERS Plaintiff to attend her deposition on a date to be arranged by counsel that is no later than 21 days after notice.

The Court GRANTS Defendant’s request for sanctions.

The Court ORDERS Plaintiff and counsel of record Ellis & Bakh, jointly and severally, to pay Defendant monetary sanctions under the Civil Discovery Act in the amount of $420 within 30 days of notice.

Moving party is ordered to give notice.