Judge: Steven A. Ellis, Case: 23STCV05954, Date: 2023-10-24 Tentative Ruling

Case Number: 23STCV05954    Hearing Date: April 16, 2024    Dept: 29

Plaintiff’s Motion to Compel the Deposition of Defendant

Tentative

The motion is granted.

Plaintiff’s request for sanctions is granted in part.

Background

This case arises out of an alleged motor vehicle accident on July 25, 2021, near the intersection of Vernon Avenue and Vermont Avenue in Los Angeles, California.

On March 17, 2023, Plaintiff Karina Elizabeth Hernandez (“Plaintiff”) filed a complaint asserting causes of action for motor vehicle negligence and general negligence against Defendants Lyft, Inc., Crystal Villalobos, Juan C. Davalos, Guilda Asuncion Davalos, and Does 1 through 100.

The named defendants all filed answers during the period of May through July 2023.

On May 3, 2023, Defendant Villalobos filed a cross-complaint against Juan C. Davalos, Guilda Asuncion Davalos, and Roes 1 through 25.  The named cross-defendants filed an answer to the cross-complaint on June 12, 2023.

On May 5, 2023, Plaintiff noticed the deposition of Defendant Crystal Villalobos (“Defendant”) for May 25.  (Wong Decl., ¶ 5 & Exh. 1.)  Defendant objected based on scheduling but refused to provide alternative dates. (Id., ¶¶ 6-7 & Exhs 2-3.)  Defendant did not appear.  (Id., ¶ 8 & Exh. 4.)

On August 3, 2023, Plaintiff served a First Amended Notice of Defendant’s deposition for August 18.  (Id., ¶ 9 & Exh. 5.)  Again Defendant objected based on scheduling but refused to provide alternative dates. (Id., ¶¶ 10, 12 & Exhs 6, 8.)  Again Defendant did not appear.  (Id., ¶ 11 & Exh. 7.)

Plaintiff filed this motion to compel on September 8, 2023.  Plaintiff also seeks sanctions.  The hearing was initially set for November 17, 2023.  Defendant filed her opposition on November 3, along with her own request for sanctions.  Plaintiff filed her reply on November 9.

The Court, on its own motion, continued the hearing to December 18.  Subsequently, the parties stipulated to continue the hearing again, to April 16.

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 2025.410, 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.”  (Code Civ. Proc., § 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., 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 has twice noticed Defendant’s deposition.  (Wong Decl., ¶¶ 5, 9 & Exhs. 1, 5.)    Defendant has twice failed to appear.  (Id., ¶¶ 8, 11 & Exhs. 4, 7.)  Defendant did serve objections, but the sole objection was based on scheduling, and Defendant never offered or proposed alternative dates.  (Id., ¶¶ 6-7, 10, 12 & Exhs 2-3, 6, 8.)

On this record, the Court OVERRULES the objections and GRANTS the motion to compel.

Plaintiff also seeks sanctions.  Sanctions are mandatory when a motion to compel a deposition is granted “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).) 

Defendant’s counsel states that, despite diligent efforts, counsel has lost contact with Defendant and has been unable to communicate with her.  As a result, counsel states, no sanctions should be awarded against Defendant or counsel, and that if anyone is sanctioned it should be Plaintiff’s counsel.

The Court concludes that sanctions should be awarded against Defendant.  She is a party to pending litigation and has an obligation to comply with the provisions of the Civil Discovery Act.  The failure to remain in contact with her counsel does not excuse her obligations, constitute substantially justified conduct, or make the imposition of sanctions against her unjust.

The Court concludes that no sanctions should be awarded against Defendant’s counsel.  When a deposition is noticed and a client refuses to communicate with counsel, counsel is placed in an untenable situation.  Under these difficult circumstances, the Court finds that the imposition of sanctions against counsel would be unjust.

No sanctions are awarded against Plaintiff or Plaintiff’s counsel.

Monetary sanctions for this motion are set in the amount of $885.  The Court has taken into consideration the relatively straightforward nature of this motion and bases its sanction award on 1.5 hours of attorney time, multiplied by counsel’s billing rate of $550 per hour, plus the filing fee of $60.  (See Wong Decl., ¶ 15.)

Conclusion

The Court GRANTS Plaintiff’s motion to compel.

The Court ORDERS Defendant to appear for deposition and testify on May __, 2024, at 10:00 am, by remote videoconference.

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

The Court ORDERS Plaintiff to pay monetary sanctions under the Civil Discovery Act to Defendant in the amount of $885, within 30 days of notice. 

The Court DENIES Plaintiff’s request for sanctions against Defendant’s counsel.

The Court DENIES Defendant’s request for sanctions.

Moving party is ordered to give notice.