Judge: Thomas Falls, Case: 21PSCV00871, Date: 2022-11-10 Tentative Ruling

Case Number: 21PSCV00871    Hearing Date: November 10, 2022    Dept: R

JOSE ANGEL BARAJAS vs MONICA A. BRIBIESCA, et al (21PSCV00871)

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(1)   MOTION FOR ORDER COMPELLING DEPOSITION OF DEFENDANT MARIA DEL ROCIO MANZORRA CERVANTES; AND AW ARD OF SANCTIONS IN THE SUM OF $3,505.50 IN ATTORNEY'S FEES AND $810.00 IN COSTS AGAINST DEFENDANT MARIA DEL ROCIO MANZORRA CERVANTES; AND HER ATTORNEYS OF RECORD

(2)   MOTION FOR ORDER COMPELLING DEPOSITION OF DEFENDANT Monica Bribiesca; AND AW ARD OF SANCTIONS IN THE SUM OF $3,505.50 IN ATTORNEY'S FEES AND $810.00 IN COSTS AGAINST DEFENDANT Monica Bribiesca; AND HER ATTORNEYS OF RECORD

            Responding Party: Unopposed as of 11/1

Tentative Ruling

(1)   MOTION FOR ORDER COMPELLING DEPOSITION OF DEFENDANT MARIA DEL ROCIO MANZORRA CERVANTES; AND AW ARD OF SANCTIONS IN THE SUM OF $3,505.50 IN ATTORNEY'S FEES AND $810.00 IN COSTS AGAINST DEFENDANT MARIA DEL ROCIO MANZORRA CERVANTES; AND HER ATTORNEYS OF RECORD is GRANTED.

(2)   MOTION FOR ORDER COMPELLING DEPOSITION OF DEFENDANT Monica Bribiesca; AND AW ARD OF SANCTIONS IN THE SUM OF $3,505.50 IN ATTORNEY'S FEES AND $810.00 IN COSTS AGAINST DEFENDANT Monica Bribiesca; AND HER ATTORNEYS OF RECORD is GRANTED.

Monetary sanctions are imposed in the reduced, total amount of $2,310.

Background

This is a contracts case. On October 26, 201, Plaintiff Jose Barajas filed suit against Defendants MONICA A. BRIBIESCA, an individual, MARIA DEL ROCIO MANZORRA CERVANTES, an individual, EL CARIBBEAN SEAFOOD RESTAURANT alleging the following: Plaintiff and Defendants entered into an agreement for a loan. Defendants, however, have defaulted on the loan.

On December 21, 2021, the ANSWER OF MONICA A. BRIBIESCA, MARIA DEL ROCIO MANZORRA CERVANTES, AND EL CARIBBEAN SEAFOOD RESTAURANT TO COMPLAINT was filed.

On March 21, 2022, an Amendment to Complaint was filed, naming El Caribbean Corp. as Doe 1.

On September 21, 2022, another Amendment to Complaint was filed naming Cesar Robles as Doe 2.

On September 21, 2022, default was entered against El Caribbean Corp.

On October 6, 2022, the two instant motions were filed.

Legal Standard

If, after service of a deposition notice, a party, or an officer, director, managing agent, employee, or designated deponent of a party, fails to appear, or testify, or produce documents or tangible things for inspection without having served a valid objection under CCP § 2025.410, the deposing party may move for an order compelling attendance, testimony, and production. (CCP § 2025.450(a).)

With respect to the party deponent, a motion to compel attendance must show good cause to justify the production of the document or tangible thing described in the deposition notice. (CCP § 2025.450(b)(1).) The motion must also be accompanied by a declaration showing a reasonable and good faith attempt to informally resolve each issue presented or, when the deponent fails to attend the deposition and produce the requested documents or things, the motion must be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (CCP § 2025.450(b)(2).)

Sanctions

“If a motion under subdivision (a) 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.” (CCP § 2025.450(g)(1).)

Discussion

In February 7, 2022, Plaintiff properly served both Defendants to appear for their respective depositions scheduled for April 1, 2022. Thereafter, Defense Counsel authored an objection to the depositions. On June 10, 2022, Defendants were properly noticed for a second time to appear for their depositions scheduled for July 22, 2022. On July 21, 2022, Defense Counsel requested to reschedule the depositions due to a scheduling error. On August 31, 2022, Defendants were again properly noticed for a third deposition, scheduled for September 21, 2022. Neither Defendants nor Defense Counsel appeared for the scheduled deposition. According to Plaintiff, when counsel contacted Defense Counsel’s office the morning of the September 21, 2022 deposition, Defense Counsel’s secretary stated Defense Counsel is “not planning on appearing.”

Here, it is evident that Defendants were not noticed once, twice, but with three times with valid deposition notices; yet, they and their counsel failed to appear. While the court does not have an opposition to comment on Plaintiff’s characterization of such conduct as gamesmanship, what is clear is that the trial is set for March 2023, and a delay in the depositions will affect Plaintiff's ability to prosecute his case.

Therefore, the court GRANTS both motions.

As for monetary sanctions, Plaintiff claims that he has incurred attorney's fees in the total sum of $3,505.50 plus $810.00 in costs per motion [calculated as follows: 4 hours drafting each motion at hourly rate of $400, plus court reporter costs in the amount of $810 per motion].

However, a review of Exhibit 3, which provides the invoice from the court reporter, only shows an invoice as to Monica Bribiesca.[1] Therefore, to the extent that Plaintiff’s Counsel seeks $810 per Defendant, the submitted invoices do not such support such an award. 

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motions is $2,310 (i.e., 5 hours at $300/hour, plus $810).

Conclusion