| Hernandez v. Command Delivery Systems, Inc. | CASE NO. 113CV256103 | |
| DATE: 31 October 2014 | TIME: 9:00 | LINE NUMBER: 13 |
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 30 October 2014. Please specify the issue to be contested when calling the Court and counsel.
On 31 October 2014, the motion of Defendants to
- Compel Plaintiff’s Deposition
- Compel Production of Documents
- Request Monetary Sanctions
was argued and submitted.
Plaintiff did not file formal opposition to the motion.[1]
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).
- Statement of Facts.
The action was filed 14 November 2013.
This is a personal injury action arising from a motor vehicle accident on the Capitol Expressway offramp from Highway 87 in San Jose. Plaintiff seeks to recover monetary damages for personal injuries, wage loss, property damage, and loss of earning capacity damages allegedly caused by the Defendant.
- Discovery Dispute.
On 11 July 2014, Defendant served on Plaintiff Defendant’s Notice of Plaintiff’s Deposition and Request for Production of Documents. Attempts by Defense Counsel to request dates of plaintiff’s availability made prior to serving notice were unreturned. Therefore, Defendant scheduled Plaintiff’s deposition for 28 July 2014 at 10:00 a.m., located at Defense Counsel’s office.
On 25 July 2014, Plaintiff’s counsel’s assistant called to notify Defense Counsel that Plaintiff was not available on 28 July 2014 for deposition. Defense Counsel requested Plaintiff’s Counsel call back with alternative dates for plaintiff’s availability to which Defense Counsel received no return call.
On 25 July 2014, Defense Counsel sent to Plaintiff’s Counsel a “meet and confer” letter requesting Plaintiff’s availability for deposition the last two weeks of August 2014, to which no response was received.
On 18 August 2014, Defendant served on Plaintiff a Notice of Plaintiff’s Deposition and Request for Production of Documents. Plaintiff’s deposition was scheduled for 25 September 2014 at 10:00 a.m., located at Defense Counsel’s office.
On 24 September 2014, Plaintiff’s Counsel’s office contacted Defense Counsel’s office requesting a copy of the notice for plaintiff’s deposition to which Defense Counsel’s office provided a copy.
As of 25 September 2014, plaintiff did not object to either notice.
On 25 September 2014, after plaintiff and Plaintiff’s Counsel failed to appear, Defense Counsel created a record of plaintiff’s non-appearance at 10:34 a.m. At approximately 10:50 a.m., plaintiff’s counsel arrived, citing traffic for his tardiness, and asked Defense Counsel if plaintiff appeared for the deposition and was informed plaintiff did not appear.
On 2 October 2014, Defendant served on Plaintiff Defendant’s Motion to Compel Plaintiff’s Deposition, Production of Documents, and for Monetary Sanctions. Plaintiff did not file opposition to the motion, which if filed, was due 20 October 2014.
III. Analysis.
- Defendant’s Motion to Compel Plaintiff’s Deposition and Production of Documents.
Defendant has the right to depose the Plaintiff. (See Code Civ. Proc. § 2025.010.) To be code compliant, Defendant must give written notice, including information required per statue. (See Code Civ. Proc. § 2025.220(a)(1)-(4).) Further, Defendant must give notice to every party who has appeared in the action, and this notice or proof of service must list the parties or attorneys for parties on whom it is served. (Code Civ. Proc. § 2025.240(a).) “Service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action… to attend and to testify, as well as to product any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc. § 2025.280(a).)
Following Plaintiff’s failure to appear at a deposition of which notice was properly served per the previous codes, Defendant brings this Motion to Compel Plaintiff’s Deposition and Production of Documents.
Where the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance is required. (Code Civ. Proc. § 2025.450(b).)
Here, Defendant’s motion and supporting declarations provide evidence of inquiries about the nonappearance of Plaintiff at the deposition that were not replied to by Plaintiff’s Counsel. Nor did plaintiff’s counsel address plaintiff’s nonappearance when arriving at the scheduled deposition an hour late, and where Plaintiff’s Counsel inquired if Plaintiff appeared. Plaintiff filed no opposition to this motion. .
Based on the foregoing reasons, the Defendant has satisfied the requirements under Section 2025.450(b) to bring a motion under Section 2025.450(a).
Therefore, Defendants’ request for an order granting Defendant’s Motion to Compel Plaintiff’s Deposition and Production of Documents is GRANTED. Plaintiff is to appear for a deposition and produce documents at any code compliant location within 20 days of the date of the filing of this order.
- Defendant’s Motion for Monetary Sanctions
Defendant makes a request for monetary sanctions in Defendant’s motion. The request is not code-compliant. Code of Civil Procedure, § 2023.040.
Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (See Rule of Court 2.30). The party’s motion must also state the applicable rule that has been violated. (Id.)
In support of the motion, Defendant cites California Code of Civil Procedure § 2025.410(d) and is (1997) 56 Cal. App. 4th 16.
However, Section 2025.410(d) provides: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2025.410(d).)
This statue is inapplicable to the instant case, as Plaintiff did not unsuccessfully make or oppose a motion to quash a deposition notice.
However, where there are no opposition papers filed, the proper source of authority for monetary sanctions is Rule of Court 3.1348(a) as there has been no failed opposition. Since no opposition was filed, the correct citation of authority would have been 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.”
In the future, counsel would be advised to add the following language in the notice of your motion: “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).
Therefore, Defendants’ request for monetary sanctions in the amount of $1,219.00 in relation to Defendants’ Motion to Compel Plaintiff’s Deposition and Production of Documents is DENIED.
- Order.
Defendants’ request for an order granting Defendant’s Motion to Compel Plaintiff’s Deposition and Production of Documents is GRANTED. Plaintiff is to appear for a deposition and produce documents at any code compliant location within 20 days of the date of the filing of this order.
Defendants’ request for monetary sanctions in the amount of $1,219.00 in relation to Defendants’ Motion to Compel Plaintiff’s Deposition and Production of Documents is DENIED.
| ____________________________
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).
Link to this page