Judge: Steven A. Ellis, Case: 23STCV04064, Date: 2025-01-08 Tentative Ruling
Case Number: 23STCV04064 Hearing Date: January 8, 2025 Dept: 29
Ortiz
v. Smart & Final LLC
23STCV04064
Defendant’s Motion to Compel Deposition of Plaintiff
Defendant’s Motion to Continue Trial
Tentative
The
motions are granted.
The
request for sanctions is granted in part.
Background
On February 23, 2023, Plaintiff Luis Jesse
Ortiz (“Plaintiff”) filed a complaint against Smart & Final, LLC and Does 1
through 50, asserting causes of action for negligence and premises liability
arising out of a slip and fall incident on March 15, 2021, at a retail store on
Pico Boulevard in Los Angeles.
On July 5, 2023, Smart & Final Stores
LLC (erroneously sued as Smart & Final, LLC) (“Defendant”) filed an answer.
Currently before the Court and set for
hearing on January 8, 2025, are two motions.
First, on December 6, 2024, Defendant filed
a Motion to Compel the Deposition of Plaintiff. Defendant also seeks sanctions.
Second, also on December 6, 2024, Defendant
filed a motion to continue the trial date.
No opposition to either motion has been
filed
Trial is currently set for March 17, 2024.
Legal Standard
Motion to Compel Deposition
“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., 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).)
Motion to
Continue Trial
Code of Civil Procedure section 128,
subdivision (a)(8), provides that the court has the power to amend and control
its process and orders so as to make them conform to law and justice. “The
power to determine when a continuance should be granted is within the
discretion of the trial court.” (Color-Vue, Inc. v. Abrams (1996) 44
Cal.App.4th 1599, 1603.) “A trial court has wide latitude in the matter of
calendar control including the granting or denying of continuances.” (Park
Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.)
“To ensure the prompt disposition of
civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the
date set for trial as certain.” (Cal.
Rules of Court, rule 3.1332(a).)
“Although continuances of trials are
disfavored, each request for a continuance must be considered on its own
merits.” (Cal. Rules of Court, rule
3.1332(c).) “The court may grant a
continuance only on an affirmative showing of good cause requiring the
continuance.” (Ibid.)
Circumstances that may support a
finding of good cause include:
“(1) The unavailability of an
essential lay or expert witness because of death, illness, or other excusable
circumstances;
(2) The unavailability of a party
because of death, illness, or other excusable circumstances;
(3) The unavailability of trial
counsel because of death, illness, or other excusable circumstances;
(4) The substitution of trial
counsel, but only where there is an affirmative showing that the substitution
is required in the interests of justice;
(5) The addition of a new party if:
(A) The new party has not had a reasonable opportunity to conduct discovery and
prepare for trial; or (B) The other parties have not had a reasonable
opportunity to conduct discovery and prepare for trial in regard to the new
party's involvement in the case;
(6) A party's excused inability to
obtain essential testimony, documents, or other material evidence despite
diligent efforts; or
(7) A significant, unanticipated
change in the status of the case as a result of which the case is not ready for
trial.”
(Cal. Rules of Court, rule
3.1332(c).)
“In ruling on a motion or application
for continuance, the court must consider all the facts and circumstances that
are relevant to the determination.” (Cal.
Rules of Court, rule 3.1332(d).) California
Rules of Court, rule 3.1332(d) sets forth a non-exhaustive list of factors that
the court may consider:
“(1) The proximity of the trial
date;
(2) Whether there was any previous
continuance, extension of time, or delay of trial due to any party;
(3) The length of the continuance
requested;
(4) The availability of alternative
means to address the problem that gave rise to the motion or application for a
continuance;
(5) The prejudice that parties or
witnesses will suffer as a result of the continuance;
(6) If the case is entitled to a
preferential trial setting, the reasons for that status and whether the need
for a continuance outweighs the need to avoid delay;
(7) The court's calendar and the
impact of granting a continuance on other pending trials;
(8) Whether trial counsel is engaged
in another trial;
(9) Whether all parties have
stipulated to a continuance;
(10) Whether the interests of justice
are best served by a continuance, by the trial of the matter, or by imposing
conditions on the continuance; and
(11) Any other fact or circumstance
relevant to the fair determination of the motion or application.”
(Cal. Rules of Court, rule
3.1332(d).)
Discussion
Motion to Compel
Deposition
Between May and
November 2024, Defendant served six notices for Plaintiff’s deposition. (Stromberg
Decl., ¶¶ 2-12 & Exhs. A-J.) The last notice set the deposition for November
14, 2024. (Id., Exh. J.) Plaintiff was unable to attend, but the parties agreed
to proceed on November 20. (Id., First Exh. K.) Plaintiff did not appear for
deposition on November 20. (Id., Second Exh. K.)
Defendant has
satisfied all substantive and procedural requirements for the motion to compel.
Defendant properly noticed Plaintiff’s deposition, Defendant made
accommodations for Plaintiff’s schedule, and Plaintiff failed to object or
appear. The motion to compel is granted.
The Court also
grants the request for sanctions in part. Given the relatively straightforward
nature of a motion to compel a party deposition, the Court sets sanctions in
the amount of $780, based on three hours of attorney time multiplied by counsel’s
reasonable billing rate of $240 per hour, plus a $60 filing fee. (See Stromberg
Decl., ¶ 16.)
Motion to
Continue Trial
Defendant seeks
to continue trial so that Defendant may take Plaintiff’s deposition and pursue
any necessary follow up discovery based on Plaintiff’s testimony. (Stromberg
Decl., ¶ 17.)
Defendant has
demonstrated diligence in seeking Plaintiff’s deposition testimony. (Id., ¶¶ 2-15.) Good cause has been shown. The
motion is granted.
Conclusion
The Court GRANTS Defendant’s motion to
compel the deposition of Plaintiff.
The Court ORDERS Plaintiff Luis Jesse Ortiz
to appear for deposition, produce the requested documents, and give testimony
under oath on January __, 2025, at 10:00 am, by video conference.
The Court ORDERS Defendant to provide a link
for the deposition at least 48 hours in advance.
The Court GRANTS IN PART Defendant’s request
for sanctions.
The Court ORDERS Plaintiff Luis Jesse Ortiz
and counsel of record Heidari Law Group, PC, jointly and severally, to pay
monetary sanctions under the Civil Discovery Act to Defendant (through counsel)
in the amount of $780 within 30 days of notice.
The Court GRANTS Defendant’s motion to continue
trial.
The Court CONTINUES the trial to a date on
or after July 15, 2025. The Final Status Conference and all deadlines are reset
based on the new trial date.
Moving Party is ordered to provide notice.