Erick Viana Escobar v. Harman Wendy, Inc.

Erick Viana Escobar, et al. v. Harman Wendy, Inc. CASE NO. 113CV238887
DATE: 14 November 2014 TIME: 9:00 LINE NUMBER: 6

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 13 November 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 14 November 2014, the motion of Defendant to Compel Deposition Attendance and Testimony of Carlos Martinez and Request for Monetary sanctions was argued and submitted.

Plaintiff filed formal opposition to the motion.[1]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]

All parties are reminded that “[a] motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”  Rule of Court 3.1345(d).

  1. Statement of Facts.

This case deals with an employment dispute.  Specifically, Plaintiff is alleging that Defendant failed to provide meal and rest periods.  They also allege that Defendant has failed to keep and provide accurate wage statements.

  1. Discovery Dispute.

On 22 August 2014, Defendant Harman-Wendy served  an apparently  code-compliant deposition notice upon Plaintiff Mr. Martinez  and upon Plaintiff Oscar Guillen.  The deposition notice stated that Mr. Martinez’s deposition would take place a 9:00 AM of 4 September 2014 in San Francisco, California.

Prior to the date of this deposition, Defendant received no notice that Mr. Martinez would fail to attend the deposition set for 4 September 2014.  However, when the day came, Mr. Martinez did not show up.

Defendant’s counsel had traveled to San Francisco from Salt Lake City, Utah in order to attend the deposition.  As part of his traveling expenses, Defendant’s counsel also needed to rent a hotel room one night.  Defendant’s counsel had also reserved a court reporter as well as an interpreter for the deposition.

However, Defendant’s counsel had multiple depositions scheduled in San Francisco the same day as the deposition for Mr. Martinez.  The interpreter and court reporter was necessary for all the depositions that were to take place that day.

However, the deposition of Mr. Guillen was not taken.  The parties disagree over whether his case was voluntarily dismissed with prejudice or settled or whether there was an agreement to take the deposition at a later point in time.  The deposition of Mr. Quijada was not completed due to a new controversy concerning the use of names under which he was employed.  The parties also disagree as to whether the deposition was to be continued at a later point in time or whether Defendant had concluded the deposition.

On 9 September 2014, and on several other occasions, Defendant’s counsel contacted Plaintiff’s counsel to discuss the costs related to Mr. Martinez’s failure to appear and to reschedule Mr. Martinez’s deposition.  Prior to preparing the present motion, Defendant’s counsel received only one email in response to its correspondence.  This email contained no substantive discussion of either the costs of Mr. Martinez’s failure to appear or dates for rescheduling the deposition.

However, on 10 October 2014, Plaintiff’s counsel contacted Defendant’s counsel by email discussing potential dates for a new deposition of Mr. Martinez.

III.     Analysis.

  1. Motion to Compel Deposition Attendance

Defendant makes a motion to compel deposition attendance pursuant to California Code of Civil Procedure § 2025.450(a).  Here, where Mr. Martinez has failed to appear at a properly noticed deposition, this motion is proper.

Defendant’s motion shows good cause in the form of Mr. Martinez’s failure to appear and Defendant has properly attempted to meet and confer on this issue via email as required by 2025.450(b).

What’s more, Plaintiff states in their objection that they do not object to the production of Mr. Martinez for deposition.

The motion of Defendant to Compel Deposition Attendance and Testimony of Carlos Martinez is GRANTED.

  1. Sanctions.

Defendant makes a request for monetary sanctions.  The request is code-compliant.  Code of Civil Procedure, § 2023.040.

In support of their request for sanctions, Defendant cites to California Code of Civil Procedure 2025.450(g)(1).  CCP 2025.450(g)(1) requires the grant of monetary sanctions where a motion to compel deposition attendance is granted.  (See CCP 2025.450(g)(1).)

Monetary sanctions allow the court to order “that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (CCP 2023.030(a).)  In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49). Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (1st Dist. 2010) 186 Cal.App.4th 1548, 1551).

Plaintiff cites the case of Ghanooni v. Super Shuttle in support of the proposition that monetary sanctions are not applicable where there is no showing that Plaintiff’s counsel advised Mr. Martinez to not appear for the deposition or that Plaintiff’s counsel had any responsibility for causing the non-appearance.  In Ghanooni, there was correspondence proving that Plaintiff’s counsel in that case had not only not advised their client’s course of action, but had actively attempted to convince her client to submit to the discovery requests in question.  It is well established that, in the context of monetary damages, the burden is on the attorney to affirmatively prove that he or she has not advised their client to engage in discovery misuse. (See Corns v. Miller (1986) 181 Cal.App.3d 195, 200.)  Here, Plaintiff’s counsel has made no evidentiary showing sufficient to meet this burden as required both in Corns and Ghanooni.[3]

Where the Motion to Compel Deposition Attendance has been granted, monetary sanctions are required where there is a code-compliant request.  However, there remains the question of what expenses may be covered by monetary sanctions in this case.

The time spent by Defendant’s counsel working on the associated filings for this motion to compel are certainly included.  Defendant’s counsel has spent a total of three hours working on this motion at a hourly billing rate of $285/hour.  The Court finds both the time spent and the billing rate to be reasonable.  Thus, the $855.00 associated with the work done on this motion is properly included in monetary sanctions.

However, the fact that Defendant would have had to travel to San Francisco for other depositions on the same day make these expenses improper to include in the calculation of monetary damages.  This is because these expenses were not incurred as a result of Mr. Martinez’s conduct as required by 2023.030(a).  Future travel expenses would also not be proper in the calculation of monetary sanctions as monetary sanction only include expenses actually incurred; speculative expenses are prohibited.

By the same token, the full day cost of the court reporter and interpreter are not proper to include in the calculation of monetary damages.  The deposition of Mr. Martinez was scheduled to take place between 10:00 AM and noon.  Therefore, the proper calculation of monetary damages would be the amount charged by the court reporter and interpreter for this two hour period.  The full deposition took approximately four (4) hours and forty-five (45) minutes.  Thus, the proportional value of their services for Mr. Martinez’s deposition is $94.74 for the court reporter and $358.74 for the interpreter.

Thus, monetary sanctions are GRANTED in the amount of $1,308.48.

  1. Order.

Accordingly,

Defendant’s Motion to Compel Deposition Attendance and Testimony of Carlos Martinez is GRANTED.  Mr. Martinez is to submit to a deposition in a code compliant location within 20 days of the date of the filing of this order.

Defendant’s request for monetary sanctions is GRANTED in the amount of $1308.48.  This sum is to be paid to counsel for Defendant within 20 days of the date of the filing of this order.

 

 

________________­­­____________

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] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[3] Some might conclude that in making these statements, Plaintiffs’ Counsel might be “throwing Mr. Martinez under the bus.”  This Court comes to no conclusion on this subject.

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