Judge: Steven A. Ellis, Case: 21STCV23702, Date: 2023-12-08 Tentative Ruling
Case Number: 21STCV23702 Hearing Date: December 8, 2023 Dept: 29
TENTATIVE
Plaintiff Rylee Smith’s motion to compel Defendant Mauro
Gonzalez’s deposition is GRANTED.
Plaintiff’s request for sanctions is GRANTED in part.
Background
On June 25, 2021, Plaintiffs Rylee Smith and Angelo
Scandaliato (by and through his guardian ad litem Anthony Scandaliato) filed
this action against Defendants Mauro Gonzalez (“Defendant”) and Does 1 to 50, asserting
causes of action for (1) motor vehicle and (2) general negligence.
The Complaint alleges the following, among other
things. On February 23, 2021, the “[d]efendants owned, operated, entrusted, and
controlled their vehicle in such a negligent and reckless manner so as to allow
said motor vehicle to cause and/or contribute to Plaintiff's injuries and
damages as alleged [in the Complaint].” (Attachment to Complaint, Second Cause
of Action for General Negligence.)
On August 10, 2021, the plaintiffs amended their
Complaint to substitute Mauro Antonio Paxtor for the defendant sued
fictitiously as Doe 1.
On March 22, 2023, Plaintiff Ryle Smith (“Plaintiff”)
filed the instant motion to compel Defendant’s deposition.
On November 1, 2023, Defendant filed his opposition
to the motion.
On November 3, 2023, Plaintiff filed her reply.
A non-jury trial is set for February 15, 2024.
Legal
Standard
“If, after service of a deposition notice, a party to the
action . . . , 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, subd. (a).)
“A motion under
subdivision (a) [above] 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, by a declaration stating that the petitioner has contacted
the deponent to inquire about the nonappearance.”
(Code Civ. Proc., § 2025.450, subd. (b).)
“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.” (Code Civ. Proc., §
2025.450, subd. (g)(1).)
Discussion
Plaintiff moves for an order compelling Defendant’s
deposition, arguing that Defendant failed to comply with Plaintiff’s fifth
deposition notice.
Plaintiff’s counsel states the following facts. On March
31, 2022, Plaintiff sent Defendant a deposition notice for deposition on May 5,
2022. (Motion, declaration of Kenneth R. Shy (“Shy Decl.”), ¶ 2.) When Plaintiff’s counsel office could not get a hold of
defense counsel to confirm the deposition, Plaintiff sent an amended deposition
notice to Defendant for deposition on August 22, 2022. (Shy Decl., ¶ 3.)
However, a few days before that deposition, on August 19, 2022, defense counsel
advised that Defendant required a K’iche interpreter for the deposition and
were unable to locate such an interpreter in time for the deposition on August
22, 2022, but had found a service that works with K’iche interpreters and would
provide alternative dates for the deposition. (Shy Decl., ¶ 4.) On August 31,
2022, Plaintiff’s counsel followed up with defense counsel and requested
alternative dates for the deposition. (Shy Decl., ¶ 4.) Having received no
response, Plaintiff served her second amended notice of deposition on September
23, 2022, for deposition on November 11, 2022. (Shy Decl., ¶ 5.) Defendant
served his objections to the deposition on November 8, 2022. (Shy Decl., ¶ 6.)
After Plaintiff’s counsel sent a meet and confer email, Defendant agreed to
provide dates for the deposition, and on November 10, 2022, Plaintiff served
her third amended notice to defense for deposition on the mutually agreed upon
date of December 1, 2022. (Shy Decl., ¶¶ 7-9.) When Plaintiff’s counsel was
advised that the K’iche interpreter was not available for the deposition,
counsel immediately informed defense counsel, and the dates that the
interpreter was available were provided in the email. (Shy Decl., ¶ 10.)
Plaintiff served her fourth amended notice on December 23, 2022, for deposition
on January 30, 2023. (Shy Decl., ¶ 11.) Plaintiff’s counsel found out that a
K’iche interpreter would be available for that deposition, but defense counsel
agreed to use the interpreter only if Defendant was available for deposition on
January 30. (Shy Decl., ¶¶ 12, 13.) Defense then served an objection to the
deposition on January 23, 2023. (Shy Decl., ¶ 14.)
Subsequently,
on January 26, 2023, Plaintiff served a fifth amended deposition notice for
deposition on March 2, 2023 (the “Fifth Deposition”), and defense counsel (on
February 28, 2023) confirmed availability for that deposition. (Shy Decl., ¶
19.) Due to the need for a rare language interpreter, two interpreters were
scheduled: one that would translate K’iche into Spanish and one that would
interpret Spanish into English. (Shy Decl., ¶ 20.)
However,
on March 1, 2023, the day before the Fifth Deposition, defense counsel
requested that the deposition be continued to March 16, 2023, while
acknowledging the difficulty securing a K’iche interpreter. (Shy Decl., ¶ 21.)
Plaintiff’s counsel responded that the request to continue was late, noted that
the deposition had been noticed five times, and requested the defense pay for
the interpreter's cancellation fee. (Shy Decl., ¶ 22.) Despite giving defense
counsel a copy of the interpreter’s invoice of $995, as defense requested,
Defendant refused to pay the invoice. (Shy Decl., ¶¶ 23-25.)
In
sum, Plaintiff argues, “[d]espite multiple of attempts to coordinate a
deposition and five actual notices being sent out and obtaining an interpreter
for an extremely rare language, the Defense refuses to produce their client for
deposition and/or provide available dates for the deposition. Defense further
refuses to reimburse Plaintiff for the interpreter fee for the fifth noticed deposition
that was cancelled the day before the deposition.” (Shy Decl., ¶ 27.)
In
opposition, defense counsel argues (among other things) that it was always his
and his client’s intent to comply with discovery obligations; Defendant had
informed defense counsel only a few days before the Fifth Deposition that he
did not have means to access the zoom deposition, and that the motion should be
denied because Defendant had offered March 16, 2023, as an alternative date for
the deposition.
The
Court has reviewed the evidence and argument of both sides. Plaintiff’s motion for an order compelling
Defendant to appear for deposition is GRANTED.
The Court has reviewed the deposition notices that Plaintiff has
submitted and notes that they all stated the depositions will take place via
Zoom. Defendant has not denied receiving all of those deposition notices. The
first notice was dated March 31, 2022. (Motion, Exhibit 1 – Plaintiff’s Notice
of Deposition, p. 13.) Therefore, as early as that date, Defendant was aware
(or at least his counsel should have made him aware) that the deposition would
take place via Zoom. Yet Defendant and defense counsel waited until a day
before the Fifth Deposition to inform Plaintiff’s counsel that they could not
appear because Defendant did not have the means to appear for the deposition.
The
Court sees a pattern by Defendant of objecting to Plaintiff’s deposition notice,
then agreeing to the deposition, and then canceling at the last minute. Plaintiff has diligently sought to take the
deposition since March 2022. Plaintiff
has a right to take the deposition, and there is simply no legitimate reason appearing
in the record that it has been so difficult to get this deposition scheduled.
The
Court also GRANTS Plaintiff’s request for sanctions. Defendant has not acted with substantial
justification in delaying this deposition, and the imposition of sanctions
would not be unjust.
The
Court awards sanctions under the Civil Discovery Act in the amount of $2,105 calculated
as follows: 3 hours of attorney time, multiplied by a reasonable rate for work
on a routine discovery motion such as this one of $350 per hour, plus an
additional $60 in filing costs, plus an additional amount of $995 actually
incurred by Plaintiff in connection with the late cancellation of the interpreters
for the previously noticed deposition.
(See Shy Decl., ¶¶ 22-30.)
Defendant’s
request for sanctions against Plaintiff and her counsel of record is denied.
Conclusion
The Court GRANTS Plaintiff Rylee Smith’s motion to compel
Defendant Mauro Gonzalez’s deposition.
Pursuant to the fifth amended deposition notice the plaintiff
served on January 26, 2023, the Court ORDERS Defendant to appear for his
deposition on a mutually agreed upon date, time, and place, no later than January
7, 2024.
The Court GRANTS in part Plaintiff’s request for sanctions.
The Court ORDERS Defendant and his counsel of record Ford, Walker,
Haggerty & Behar, jointly and severally, to pay monetary sanctions under
the Civil Discovery Act to Plaintiff in the amount of $2,105 within 30 days of
notice of this ruling.
The Court DENIES Defendant’s request for sanctions.
Moving party is ordered to give notice.