Lawzilla Additional Information: Defendant is represented by Kent VanDerSchuit

Case Number: 17STLC03344 Hearing Date: January 22, 2020 Dept: 26

Carson CJ, LLC v. Automotive Retail Solutions, et al.

MOTION TO COMPEL DEPOSITION; REQUEST FOR SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

Plaintiff Carson CJ, LLC’s Motion for an Order Compelling Defendant Automotive Retail Solutions, LLC’s Attendance at Deposition and for Monetary Sanctions is GRANTED. PLAINTIFF TO FILE A PROPOSED ORDER SETTING FORTH THE SPECIFIC DATE, TIME AND LOCATION OF THE DEPOSITION WITHIN FIVE (5) DAYS. DEFENDANT AND ITS COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY PLAINTIFF’S COUNSEL SANCTIONS IN THE AMOUNT OF $2,341.56 WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

ANALYSIS

Plaintiff CJ Carson, LLC (“Plaintiff”) filed the instant action for breach of contract against Defendant Automotive Retail Solutions, LLC (“Defendant”) on October 16, 2017. Plaintiff filed the instant Motion to Compel Defendant’s Attendance at Deposition (“the Motion”) on March 18, 2019. The hearing on the Motion was continued to allow for a hearing on Plaintiff’s Motion to Reopen Discovery, which the Court granted on August 28, 2019. Also on August 28, 2019, the Court found the Motion was not supported by the requisite meet and confer declaration and continued the matter again. On December 23, 2019, Plaintiff filed a supplemental declaration. To date, no opposition has been filed.

Legal Standard

Code of Civil Procedure section 2025.450, section (a) states in relevant part:

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).) The motion must also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450, subds. (b)(1), (2).) A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)

Discussion

Plaintiff presents evidence that Defendant failed to appear for its properly noticed deposition on February 26, 2019. (Motion, Jurdi Decl., ¶¶2-4 and Exhs. A-B.) Defense counsel did not advise Plaintiff’s counsel that Plaintiff would fail to appear. (Id. at ¶3.) The motion is accompanied by a meet and confer declaration demonstrating that Plaintiff’s counsel reached out to defense counsel and Defendant following the failure to appear. (Motion, Supp. Jurdi Decl., ¶¶2-3.) Neither Defendant nor defense counsel has cooperated to reschedule the deposition. (Ibid.)

Based on the Defendant’s failure to appear for the properly noticed deposition and continuing lack of cooperation in rescheduling, the Motion to Compel Attendance at Deposition and Request for Sanctions is GRANTED. PLAINTIFF TO FILE A PROPOSED ORDER SETTING FORTH THE SPECIFIC DATE, TIME AND LOCATION OF THE DEPOSITION.

Sanctions are warranted pursuant to Code of Civil Procedure, section 2023.030, subdivision (d) and section 2025.450, subdivision (g)(1,) and have been properly noticed. However, the Court finds the amount sought is excessive. Plaintiff’s counsel could have avoided the cost associated with the flight to Las Vegas by confirming Defendant’s attendance in the days prior to the deposition. Sanctions are jointly and severally awarded against Defendant and its attorney of record in the reduced amount of $2,341.56 based on the reasonable attorneys’ fees and costs for bringing this motion. (Motion, Supp. Jurdi Decl., ¶5.) Specifically, three hours of attorney time billed at $385.00 per hour and the $271.56 flight to Las Vegas. (Ibid.) THE SANCTIONS ARE TO BE PAID TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

Moving party to give notice.