Judge: Steven A. Ellis, Case: 21STCV40994, Date: 2024-11-22 Tentative Ruling

Case Number: 21STCV40994    Hearing Date: November 22, 2024    Dept: 29

Edison v. Burton Plaza Apartments, LLC
21STCV40994
Motion to Compel Deposition of Defendants’ Employee Henry Cruz

Tentative

The motion to compel is granted.

The request for sanctions is granted in part.

Background

On November 8, 2021, Michele Edison (“Plaintiff”) filed a complaint against Burton Plaza Apartments, LLC (“Burton Plaza”), Statewide Enterprises, Inc. (“Statewide”), Arturo Serna (“Serna”), Serna Maintenance (“Serna Maintenance”), and Does 1 through 50, asserting causes of action for premises liability and general negligence arising out of an alleged slip and fall on May 20, 2020.

On December 28, 2021, Burton Plaza and Statewide filed an answer.  On the same day, they filed a cross-complaint against Serna and Serna Maintenance. The cross-complaint was dismissed on April 18, 2022.

On April 6, 2022, Serna and Serna Maintenance filed an answer to the complaint.

On October 11, 2024, Plaintiff filed this motion to compel the deposition of Defendants’ employee Henry Cruz.

No opposition was 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.”  (Id., § 2023.030, subd. (a).)

Discussion

Plaintiff seeks to depose Henry Cruz, a witness and employee of Serna and Serna Maintenance.

On three separate occasions, Plaintiff has noticed Mr. Cruz’s deposition.  (Ahn Decl., ¶ 4 & Exh. 1.) The most recent deposition date, set based on the agreement of counsel, was August 8, 2024.  (Id., ¶¶ 4-5 & Exhs. 1-2.) 

Defendants did not object to the deposition notice, and Mr. Cruz did not appear for deposition.  (See id., ¶ 2.)  Approximately one hour before the deposition was scheduled to begin, Defendants emailed to state that Mr. Cruz was not available.  (Id., Exh. 2.)  Plaintiff followed up to inquire about the nonappearance, but no response was received.  (Id., ¶¶ 2-3 & Exh. 2.)

Plaintiff need not show anything more.  All substantive and procedural requirements are satisfied.  The motion to compel is granted.

Plaintiff’s request for sanctions is granted in part.  Given the straightforward nature of this motion, the Court sets sanctions in the amount of $2,316.65, calculated based on 1.5 hours of attorney time, multiplied by a reasonable billing rate for work of this nature of $300 per hour, plus a $61.65 filing fee, plus the late cancellation fees for the reporter and interpreter actually incurred by Plaintiff in the amount of $1,805.  (See id., ¶¶ 7-9 & Exh. 3.)

Conclusion

The Court GRANTS Plaintiff’s motion to compel Defendant Arturo Serna and Serna Maintenance to produce their employee Henry Cruz for deposition.

The Court ORDERS Defendant Arturo Serna and Serna Maintenance to produce their employee Henry Cruz for deposition on December __, 2024, at 10:00 am, by video conference.  Plaintiff is ordered to provide the link for the deposition to Defendants’ counsel at least 24 hours in advance.

The Court GRANTS Plaintiff’s request for sanctions in part.

The Court ORDERS Defendant Arturo Serna, Defendant Serna Maintenance, and Defendants’ counsel of record, Resnick & Louis, P.C., jointly and severally, to pay monetary sanctions under the Civil Discovery Act in the amount of $2,316.65 to Plaintiff (through counsel) within 30 days of notice.

Moving party is ORDERED to give notice.