Case Number: BC649351 Hearing Date: March 22, 2018 Dept: 92

DANILO DEFIESTA, ET AL.,

Plaintiff(s),

vs.

ELIO RAMOS, ET AL.,

Defendant(s).

CASE NO: BC649351

[TENTATIVE] ORDER GRANTING MOTION FOR SANCTIONS

Dept. 92

1:30 p.m.

March 22, 2018

Prior Ruling

On 9/19/17, the Court heard Plaintiffs’ motion to compel Defendant’s deposition. The Court, Honorable Yolanda Orozco presiding, issued the following tentative ruling (which was ultimately adopted and became final) prior to the hearing:

Plaintiffs, Danilo and Nenita DeFiesta filed this action against Defendant, Elio Ramos for damages arising out of an automobile accident. Plaintiffs have attempted to take Defendant’s deposition, and Defendant has not appeared. At this time, Plaintiffs move to compel the deposition.

Defendant opposes the motion. The opposition is based on Defense Counsel’s declaration. Defense Counsel declares that Defendant is homeless, works as a day laborer, and does not have access to regular communication with his attorney. Defendant argues he recently responded to extensive written discovery, and his deposition is not necessary. Defendant argues the case is in its nascent stages, and there is no need to expedite the deposition. Defense Counsel offers to waive statutory notice of the deposition in the event Defendant is located and/or to continue trial if necessary.

Plaintiffs, in reply, indicate that they suffered catastrophic injuries as a result of the collision and the deposition is necessary to fully address causation and related issues. They correctly note that, even though the case is relatively young at this time, they are entitled to pursue a deposition and potentially an order for issue, evidentiary, and/or terminating sanctions if Defendant continues to fail to appear; all of these motions take time. They also note that, while their written discovery did limit the issues that need to be discussed at deposition, it did not eliminate their need to conduct a deposition entirely.

On balance, the Court is inclined to grant the motion to compel. Plaintiffs made the requisite showing that they timely noticed Defendant’s deposition and that he failed to appear. CCP §2025.480. Defendant engaged in the privilege of driving, and engaging in that privilege comes with the responsibility to participate in any litigation that arises out of the activity. Defendant has an independent obligation to communicate with his attorney and to actively defend himself while the litigation is ongoing, including complying with all discovery obligations.

Plaintiff seeks an order compelling Defendant to attend his deposition within twenty days after the hearing on this motion. Trial in this action is set on 8/08/18. The Court therefore orders Defendant to sit for deposition within ninety, as opposed to twenty, days of the hearing. Counsel for the two parties are ordered to communicate to coordinate a deposition date, time, and location. If Defense Counsel locates Defendant, he must immediately communicate this to Plaintiff; his deposition may be immediately noticed and statutory notice of the deposition will not be required; Defendant has indicated an intent to waive statutory notice requirements.

The Court notes that Plaintiff does not seek sanctions and none are imposed.

Motion for Issue and Evidentiary Sanctions

Defendant did not appear for his deposition pursuant to the 9/19/17 order, and on 1/22/18, the Court heard a motion for issue and/or evidentiary sanctions based on Defendant’s failure to appear. The Court continued the hearing to 3/22/18 and ordered the parties to brief the status of Defendant’s deposition at least one week prior to the case.

The Court has received a brief and declaration from Plaintiff’s attorney, who declares that Defendant has not, to date, appeared for deposition. Defendant’s attorney also filed a declaration, in which he concedes that Defendant has not appeared. In light of the prior order, the attorney declaration, and the concession by Defendant, the motion for sanctions is granted at this time.

The following issues are determined by way of this motion:

1. Defendant ELIO RAMOS (hereinafter “Defendant”) is 100% negligent in causing the collision between his vehicle and Plaintiffs’ bodies on December 30, 2015.

2. Plaintiffs have no comparative negligence in causing the collision between Defendant’s vehicle and Plaintiffs’ bodies on December 30, 2015.

3. Plaintiffs are not negligent per se for any violations of the California Vehicle Code on November 30, 2015.

4. Plaintiffs did not voluntarily or knowingly act in such a manner as to invite injury and assume any and all risks of failing to use a crosswalk to cross Walnut Grove Avenue on November 30, 2015.

Defendant is precluded from introducing any evidence on the above-detailed issues.