Judge: Steven A. Ellis, Case: 22STCV35347, Date: 2023-11-03 Tentative Ruling

Case Number: 22STCV35347    Hearing Date: December 8, 2023    Dept: 29

TENTATIVE

 Plaintiff’s motion to compel the deposition of Defendant is GRANTED.

 Plaintiff’s request for monetary sanctions is granted in part.

 Background

 On November 7, 2022, Plaintiff Luis Sanchez (“Plaintiff”) filed a complaint against Defendants Los Angeles County Metropolitan Transportation Authority (“Defendant”) and Does 1-25, arising out of an accident that occurred on December 21, 2021, while Plaintiff was riding on a bus operated by Defendant.

 On October 2, 2023, Plaintiff filed a motion to compel deposition of Defendant. On October 13, 2023, Defendant filed an opposition. On October 19, 2023, Plaintiff filed a reply.

The hearing was initially set for October 26 but was continued twice.

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 2025.230 provides: “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested.  In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” 

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 

In response to Plaintiff’s discovery requests, Defendant previously produced a thirty second video of the moment of impact of the bus collision that abruptly ends. (Franco Decl. ¶ 2.) On April 17, 2023, Defendant served further responses to Plaintiff’s Request for Production of Documents, Set one. (Id. ¶ 3, Exh. 1.)  These responses state, among other things, “No other footage (e.g., on board digital video recorder (‘DVR’) exists due to a download failure.”  (Id., Exh. 1, at pp. 7, 9.)

On June 5, 2023, Plaintiff served a Notice of Deposition of Defendant’s Person Most Qualified (“PMQ”) with requests for production of documents regarding the video footage including the purported lost/missing footage that is not available due to a download error. (Id., ¶ 5, Exh 2.) On June 15, 2023, Defendant served objections to the notice. (Id., ¶ 6, Exh. 3.) On June 26, 2023, Plaintiff responded by letter and gave Defendant thirty days to provide the applicable PMQs before filing a motion to compel deposition. (Id., ¶ 7, Exh. 4.) Defendant’s counsel did not respond to Plaintiff’s letter. (Id., ¶ 8, Exh. 5.) On July 27, 2023, Plaintiff re-noticed the PMQ deposition for August 9, 2023. (Id., ¶ 9, Exh. 6.) In response, Defendant re-issued the same objections and refused to designate and produce a PMQ for deposition. (Id., ¶ 10, Exh. 7.) On August 8, 2023, Plaintiff emailed Defendant’s to confirm if they would not appear at the noticed deposition so Plaintiff could cancel the videographer and notified Defendant of Plaintiff’s intent to take a certificate of non-appearance and seek costs for taking the certificate. (Id., ¶ 11, Exh. 8.) On August 9, 2023, Plaintiff took a certificate of non-appearance, which cost $970.00. (Id., ¶ 12, Exh. 9.)

Subsequent to the filing of the motion, Defendant has agreed to produce a witness as to Topic No. 4.  (Lu Decl., ¶ 13; Reply at p. 2.)  The other nine topics remain in dispute.

As a preliminary matter, the Court finds that Plaintiff has provided sufficient evidence to satisfy the procedural requirements for the motion.  (Code Civ. Proc., §§ 2016.040, 2025.450(b).) Section 2025.450 does not require the filing of a separate statement when a party has refused to appear for deposition.

The Court has carefully reviewed and considered all of the evidence and argument presented by both sides, including the deposition topics, the requests for production, and the objections thereto.  The Court OVERRULES Defendant’s objections.  The Court concludes that the deposition topics are properly formulated and that the Plaintiff has shown good cause for the requested documents.

While Defendant asserts that the video footage has been produced in its entirety, Defendant fails to offer a justification in failing to designate a witness to appear for the deposition, produce the requested documents, and answer questions on the designated topics. Plaintiff seeks to obtain discoverable information relating to the person most qualified to testify to the video footage, policies and procedures relating to the downloading, retention, and storage of bus video footage, and the DVR download of the footage and lost footage. Although the video footage may not be recoverable due to the download failure of the footage, Plaintiff is entitled to this discovery, including to know how and why the download failure occurred. Furthermore, there is no reason why Defendant’s person most qualified cannot appear and provide responses as to the policies and procedures relating to the downloading, retention, and storage of bus video footage, and the DVR download of the footage. (Franco Decl. ¶ 9, Exh. 6.)

The motion to compel Defendant’s deposition and the production of documents is GRANTED.

Turning to sanctions, the Court does not find that Defendant has acted with substantial justification or that the imposition of sanctions would be unjust.  Accordingly, the Court will GRANT Plaintiff’s request for sanctions.  The amount of sanctions is set at $2,320, calculated as follows: 4.5 hours of attorney time, multiplied by a reasonable hourly rate of $300 per hour for work on a straightforward motion to compel deposition, plus the expense of $970 actually and reasonably incurred by Plaintiff in connection with the non-appearance of Defendant.  (See Franco Decl., ¶ 12 & Exh. 9.)

Conclusion 

 The Court GRANTS Plaintiff’s motion to compel.

The Court ORDERS Defendant to produce a PMQ witness to testify on the topics in the deposition notice dated July 27, 2023, and to produce the documents requested in that notice, within 30 days of notice of this order.

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

The Court ORDERS Defendant and counsel of record Graves & King LLP, jointly and severally, to pay monetary sanctions to Plaintiff under the Civil Discovery Act in the amount of $2,320 within 30 days of notice of this order.

Plaintiff is ordered to give notice.