Judge: Steven A. Ellis, Case: 21STCV24174, Date: 2025-01-09 Tentative Ruling

Case Number: 21STCV24174    Hearing Date: January 9, 2025    Dept: 29

Gomez v. Gutierrez
21STCV24174
Defendant’s Motion to Compel the Deposition of Plaintiff

Tentative

Motion is granted. The request for sanctions is granted in part.

Background

On June 29, 2021, Daniel Gomez (“Plaintiff”) filed a complaint Andrew Gutierrez (“Defendant”) and Does 1 through 10 for motor vehicle negligence arising out of an accident on July 1, 2019.

On October 9, 2023, Defendant filed an answer.

On December 5, 2024, Defendant filed the motion to compel the deposition and production of documents of Plaintiff. 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.”  (Code Civ. Proc., § 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.”  (Code Civ. Proc., § 2023.030, subd. (a).)

Discussion

On October 9, 2023, Defendant noticed Plaintiff’s deposition for February 7, 2024; the deposition was taken off-calendar due to delayed responses to written discovery. (Hakopian Decl., ¶¶ 2, 4.) On February 6, 2024, Defendant served the amended noticed of taking Plaintiff’s deposition set for April 30, 2024. (Id., ¶ 6.) On May 6, 2024, Defendant served a notice for taking Plaintiff’s deposition for June 10, 2024. (Id., ¶ 8.) On July 2, 2024, Defendant served the third notice for taking Plaintiff’s deposition for July 23, 2024. (Id., ¶ 13.) On September 19, 2024, Defendant served the fourth noticed for taking Plaintiff’s deposition for October 16, 2024. (Id., ¶ 18.) On November 8, 2024, Defendant served the fifth notice of taking Plaintiff’s deposition set for November 26, 2024. (Id.¸¶¶ 23, 24.) Plaintiff has yet to appear for deposition.

The Court finds Defendant has properly noticed Plaintiff’s deposition multiple times; Plaintiff has failed to proceed with it. Plaintiff has also not filed any objections to the deposition or the attached request for production.  

Accordingly, the motion to compel Plaintiff’s attendance for deposition and to provide responses to the request for production is GRANTED.

The request for sanctions is granted in part.  The Court sets sanctions in the amount of $861.99, based on two hours of attorney time, multiplied by counsel’s reasonable billing rate of $160.17 per hour, plus one hour of legal assistant time at a reasonable billing rate of $75 per hour, plus $406.65 in court reporter fees and a $60 filing fee. (See Hakopian Decl., ¶ 32.)

Conclusion

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

The Court ORDERS Plaintiff Daniel Gomez to appear for deposition, produce the requested documents, and give testimony under oath on January 16, 2025 at 10 a.m. via remote video conference.

The Court ORDERS Defendants to provide Plaintiff with the link for the deposition at least 48 hours in advance of the deposition.

The Court GRANTS Defendant’s request for sanctions.

The Court ORDERS Plaintiff Daniel Gomez and his attorney of record, Patrick A. Carreon, jointly and severally, to pay money sanctions under the Civil Discovery Act in the amount of $861.99 to Defendant (through counsel) within 30 days of notice.

Moving parties to give notice.