Cynthia Velasquez v. Karen Matsumoto

Cynthia Velasquez v. Karen Matsumoto

CASE NO. 113CV256501

DATE: 1 August 2014

TIME: 9:00

LINE NUMBER: 12

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 31 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 1 August 2014, the motion of Karen Matsumoto (“Defendant”) for to compel Cynthia Velasquez (“Plaintiff”) to attend and testify at deposition was argued and submitted.  Defendant also requested monetary sanctions from Plaintiff.

Plaintiff did not file formal opposition to the motion.[1]

Statement of Facts

This motion arises from a three vehicle accident that occurred on 22 November, 2011, in San Jose, California at the intersection of W. San Carlos Avenue and Meridian Ave.  Plaintiff filed the motion against the Defendant, claiming back injury, neck injury, and chest injury as a result of the accident.

Discovery Dispute

On 21 November, 2013, Plaintiff filed the complaint against Defendant.

On 4 March, 2014, Defendant counsel granted Plaintiff counsel’s request for discovery extension to 14 March 2014.

On 18 March, 2014, Plaintiff counsel and Defendant counsel agreed to take the deposition of Plaintiff on 20 March, 2014.  Defendant served an Amended Notice of Deposition for 29 April 2014.

On 20 March, 2014, Defendant counsel’s office left a message with Plaintiff’s counsel office regarding the status of the overdue discovery.

On 01 April, 2014, a meet and confer letter was sent to Plaintiff’s counsel regarding Plaintiff’s overdue discovery response.

On 23 April, 2014, Plaintiff counsel informed Defendant counsel that discovery responses were not completed.

On 25 April, 2014, Plaintiff counsel requested the deposition to be rescheduled to 4 June, 2014.  Defendant served a Second Amended Notice of Deposition for 4 June, 2014.

On 28 April, 2014, a second meet and confer letter was sent to Plaintiff counsel and requesting  discovery responses by 02 May, 2014.

On 30 May, 2014, Defendant counsel confirmed with Plaintiff counsel regarding the appearance of Plaintiff at 4 June 2014 deposition.  Plaintiff counsel requested a Spanish interpreter for the Plaintiff.

On 04 June, 2014, Plaintiff counsel office called Defendant counsel office to confirm the interpreter for Plaintiff.  Later, Plaintiff counsel office called and informed the Defendant counsel that the deposition would have to be rescheduled.

On 01 July, 2014, Plaintiff counsel office stated that Plaintiff and counsel would be available for deposition on 11 August, 2014 at 10:00 a.m.

On 02 August, 2014, Defendant served a Third Amended Notice of Deposition for 11 August, 2014.

Analysis

In California, oral deposition is governed under CCP § 2025.010 et seq.  Code Civ. Proc. § 2025.010.  A deposition is testimony taken before trial, under oath, subject to cross-examination, and preserved in writing.  Under certain circumstances, a deposition transcript may be admissible evidence at trial.  Code Civ. Proc. § 2025.620(a).

Any party may obtain discovery by taking in California the oral deposition of any person, including any party to the action, which may be a natural person, an organization, a partnership, an association, or government agency.  Code Civ. Proc. § 2025.010.  The adverse party may use the deposition of a party for any purpose.  Code Civ. Proc. § 2025.620(a).

A notice of deposition must be served on all parties who have appeared in the action.  Code Civ. Proc. Section 2025.240(a).  The notice must state the date, time, place where the deposition will be taken, and deponent’s name.  Code Civ. Proc. § 2025.220(a)(3).  There is no need to serve a deposition subpoena on an opposing party in order to take that party’s deposition.  Proper service of the notice of deposition compels the opposing party to appear, to testify, and to produce documents if requested.  Code Civ. Proc. § 2025.280(a).

The party noticing the deposition may move for an order compelling discovery from a party deponent who fails to appear and who has not served a valid objection under § 2025.410(a).  Code Civ. Proc. § 2025.450(a).  No “meet and confer” is required where the deponent fails to attend the deposition.  Code Civ. Proc. § 2025.450(b)(2).  The only requirement for the counsel is a good-faith inquiry about nonappearance and make a good faith attempt to resolve the issue by rescheduling.  Leko v. Cornerstone Building Inspection Service, 86 Cal. App. 4th 1109, 1124 (2001).

Here, Defendant has the right to take the oral deposition of the opposing party in the action, Plaintiff Cynthia Velasquez, under CCP § 2025.010.  Defendant cited CCP § 2025.450(a) for requesting an order to compel attendance.  Three code-compliant notices of deposition have been served on Plaintiff prior to this motion.  Plaintiff counsel has not completed the overdue discovery response and cancelled the scheduled deposition at the last moment without justification, even when Defendant counsel offered to wait.  Before the cancellation, Plaintiff counsel requested and received two continuances from Defendant counsel for deposition.  The actions of Plaintiff counsel seem like repeated attempts at avoiding the deposition for his client.

Accordingly, Defendant motion to compel Plaintiff to attend and testify at the deposition is GRANTED.  Plaintiff is ordered to appear at the scheduled August 11, 2014 deposition.

Sanctions

If a party deponent fails to appear for deposition, monetary sanction may be imposed.  Code Civ. Proc. Section 2025.450(c)(2).  Defendant cited CCP §§ 2025.450(c)(2) and 2023.010 for requesting monetary sanction against Plaintiff for refusal to attend and testify at deposition without substantial justification.

Concerning the monetary sanction demand, Plaintiff has not unsuccessfully opposed the Plaintiff’s motions. (Code Civ. Proc. § 2030.290; 2031.300). Therefore, reliance on §§ 2030.010, 2030.300, 2031.310 for monetary sanctions is inapplicable in this case because the plaintiff have not unsuccessfully opposed the defendant’s motion. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a), where the court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.

The Court suggests the proper procedure would be to put the following language in the notice of the motion and in the memorandum of points and authorities:

“If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with all Court rules.  If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a) which states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Here, Defendant filed a timely written notice of the motion which is not code compliant.  The notice named Plaintiff, specified the sanctions, and identified the reasons for sanctions.  However, Defendant did not referenced Rules of Court 3.1348(a) for an award of sanction by the Court even if no opposition to the motion is filed.

The Plaintiff requests this Court for the monetary sanction in the amount of $1181.00.  The request for monetary sanction is denied.

Order

The motion of Defendant Matsumoto to compel, Plaintiff Velasquez, to attend and testify at the deposition is GRANTED.

The request for monetary sanctions is DENIED.[2]

 

 

________________­­­____________

DATED:

_________________________­­­________________________

HON. SOCRATES PETER MANOUKIAN

Judge of the Superior Court

County of Santa Clara



[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] See “Civil Discovery Sanctions in California Courts–“The 3:10 to Discoveryville”  http://www.abtl.org/report/nc/abtlnorcalvol23no1.pdf

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