Michelle austin, et al.,

Plaintiffs,

v.

LIVING SPACES FURNITURE, LLC, et al.,

Defendants.

Case No.: BC603781

Hearing Date: May 11, 2018

[TENTATIVE] order RE:

(1) Motions to compel Further Responses

(2) Motions to compel depositions

BACKGROUND

Plaintiff Michelle Austin are the wife of Decedent Paul Austin (“Decedent”), and Plaintiffs Jake Paul Austin and Taylor Summersby Austin are the children of Decedent. Plaintiffs allege that on November 1, 2015, Defendants’ vehicle collided and crashed into the body of Decedent, which directly and legally caused his death. The first amended complaint (“FAC”), filed September 20, 2016, alleges cause of action for: (1) negligence; (2) survivor action; (3) NIED; (4) peculiar risk; and (5) negligent hiring/supervision/retention of an independent contractor.

At issue are 5 motions filed by Plaintiffs. Plaintiffs filed 3 motions to compel further responses from: (1) Defendant Estrella Delivery Inc. (“Estrella”); (2) Defendant William Galindo Martinez (“Martinez”); and (3) Defendant Roberto Aguirre (“Aguirre”). Plaintiffs filed 2 motions to compel depositions of: (1) Martinez; and (2) Aguirre. The motions are opposed.

MOTIONS TO COMPEL FURTHER RESPONSES

A. Motions to Compel Further Responses from Estrella

Plaintiffs moved to compel further responses to special interrogatories 5-28 (“SROG”); requests for production, set one 17 and 19 (“RPD”); and RPD, set two, 1-4 from Estrella. In the opposition, Estrella argues that it provided supplemental responses and that verifications will promptly be provided. In reply, Plaintiffs argue that Estrella provided responses only after Plaintiffs filed the motion and that they are not yet in receipt of verifications. Plaintiffs also argue that the responses are inadequate and incomplete as to RPD nos. 17 and 19. Thus, Plaintiffs still seek sanctions.

“Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Here, although supplemental responses were provided, no verifications accompany the responses. As such, the motion is not moot due to the lack of verified responses. Thus, the motion is granted such that Estrella is ordered to provide verified, complete responses to SROG 5-28, RPD set one 17-19, and RPD set two 1-4.

Furthermore, the Court notes that it was not until these motions was Estrella prompted to provide supplemental responses. As such, the Court will grant Plaintiffs’ request for sanctions. Estrella and its counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,110.00 to Plaintiffs, by and through counsel, within twenty (20) days of notice of this order.

B. Motion to Compel Further Responses from Martinez

Plaintiffs moved to compel further responses to form interrogatories 2.8 (“FROG”) and RPD, set one 22 and 24 from Martinez. In the opposition, Martinez argues that he provided supplemental responses and will shortly provide verifications. In reply, Plaintiffs argue that Martinez provided responses only after Plaintiffs filed the motion and that they are not yet in receipt of verifications. Plaintiffs also argue that the responses are inadequate and incomplete. Thus, Plaintiffs still seek sanctions.

Similar to the discussion above, the Court will grant the much such that Martinez is ordered to provide further, verified responses to each of the pending discovery matters outstanding in this motion.

Plaintiffs’ request for sanctions is granted. Martinez and his counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,110.00 to Plaintiffs, by and through counsel, within twenty (20) days of notice of this order.

C. Motion to Compel Further Responses from Aguirre

Plaintiffs moved to compel further responses to FROG 1.1 through 20.1; and RPD 1-24. In the opposition, Defendants argue that Aguirre’s supplemental responses have been provided, but that Aguirre has been uncooperative and defense counsel is unable to contact Aguirre. In reply, Plaintiffs argue that Aguirre provided these unverified, incomplete responses only after Plaintiffs filed the motion. Thus, Plaintiffs still seek sanctions.

Although defense counsel has been unable to contact Aguirre, this does not excuse Aguirre’s failure to provide discovery responses or to meet and confer about this situation, rather than delaying discovery since the FROG and RPD were first propounded in August 2017. Furthermore, even if supplemental responses were provided, they are unverified such that they are tantamount to no responses at all. Accordingly, the motion is granted and Aguirre is ordered to provide further, verified responses to the FROG and RPD.

Plaintiffs’ request for sanctions is granted. Aguirre and his counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,110.00 to Plaintiffs, by and through counsel, within twenty (20) days of notice of this order.

MOTIONS TO COMPEL DEPOSITIONS

Legal Standard

Pursuant to CCP §2025.450, if after service of a deposition notice a party to the action, without having served a valid objection, fails to appear for examination, or proceed with it, or to produce for inspection any document, the party giving notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document. (CCP §2025.450(a).) In order to bring a motion to compel the deposition of a party to the action, the motion must be accompanied by a meet and confer declaration, or, when the deponent fail to attend the deposition, a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (CCP §2025.450(b)(2).)

Merits

On December 21, 2017, Plaintiff Michelle Austin served notices of taking the depositions of Martinez and Aguirre, and request for production of documents, setting the depositions for January 10, 2018 and January 11, 2018, respectively. On January 4, 2018, Plaintiffs’ counsel, Brian Hong, received Martinez and Aguirre’s objections that the deposition was unilaterally set. Mr. Hong states that he attempted to meet and confer with defense counsel about the objection and scheduling of the deposition on several occasions throughout January, February, and March of 2018. However, Mr. Hong states that his efforts were unsuccessful and he has been unable to receive deposition dates from defense counsel for Martinez and Aguirre.

In Martinez’s opposition, Martinez argues that on April 27, 2018 (3 days before filing the opposition), they offered several dates for the deposition of Martinez for June 18-22, 2018 and thus this motion is now moot. They argue that the deposition was initially unilaterally set and that sanctions should not be imposed. Despite this objection, defense counsel fails to state why there was a delay for about 3-4 months to cooperate with Plaintiffs’ counsel and provide dates for Martinez’s deposition.

Nevertheless, it appears that Plaintiffs are amenable to conducting the deposition of Martinez on June 21, 2018 at 10:00 a.m. at the law offices of Grassini, Wrinkle & Johnson at 20750 Ventura Boulevard, Suite 221, Woodland Hills, CA 91364.

In Aguirre’s opposition, Defendants argue that the deposition was unilaterally set and that Aguirre has been uncooperative and cannot be located. Defendants argue that they hired a private investigator in order to make good faith efforts to locate Aguirre, but have been unable to contact him. As discussed above, it is unclear why there was such a delay in responding to Plaintiffs’ meet and confer efforts; thus, the Court finds that Plaintiffs’ filing of this motion prompted Defendants’ response. Nevertheless, Plaintiffs are entitled to take the deposition of Aguirre, a party to this action, and thus the motion is granted. However, the parties should meet and confer about the status of Aguirre’s whereabouts and a potential date to set his deposition.

The Court will award sanctions to Plaintiffs. Martinez, Aguirre, and their counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,520.00 to Plaintiff Michelle Austin, by and through counsel, within twenty (20) days of notice of this order.

CONCLUSION AND ORDER

Plaintiffs’ motions to compel further responses from each of Estrella, Martinez, and Aguirre are granted. Estrella, Martinez, and Aguirre are each ordered to provide verified responses to Plaintiffs’ discovery requests, without objections, within twenty (20) days of notice of this order. In connection with the motions to compel further, Estrella, Martinez, and Aguirre and their counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $3,330.00 to Plaintiffs, by and through counsel, within twenty (20) days of notice of this order.

The motion to compel the deposition of Martinez is granted. The Court orders the deposition of Martinez to occur on June 21, 2018 at 10:00 a.m. at the law offices of Grassini, Wrinkle & Johnson at 20750 Ventura Boulevard, Suite 221, Woodland Hills, CA 91364.

The motion to compel the deposition of Aguirre is granted. However, as the whereabouts of Aguirre is currently unknown, the parties are ordered to meet and confer about the status of Aguirre and potential dates to conduct the deposition.

In connection with the motions to compel deposition, Martinez, Aguirre, and their counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,520.00 to Plaintiff Michelle Austin, by and through counsel, within twenty (20) days of notice of this order.

Plaintiffs shall give notice of this order.