Case Number: BC592290 Hearing Date: January 15, 2019 Dept: SEC

MICHAELIDES v. STATE OF CALIFORNIA

CASE NO.: BC592290

HEARING: 01/15/19

JUDGE: LORI ANN FOURNIER

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TENTATIVE RULING

Defendants SHIMMICK CONSTRUCTION CO., INC. and SHIMMICK/MYERS AND SONS JV’s motion to compel the deposition of STACEY RUIZ-JUAREZ is GRANTED. CCP §2020.220(c).

Plaintiff’s motion to quash or alternatively for a protective order is DENIED.

Prevailing Party(s) to give notice.

Deponent STACEY RUIZ JUAREZ is ORDERED to appear for a deposition, without objection, at a reasonable date and time to be determined by the moving party— no later than 15 days from the date of this hearing. The date may be extended by agreement of the parties.

Defendants’ request for monetary sanctions is GRANTED as follows: STACEY RUIZ JUAREZ and Plaintiff’s counsel CARPENTER, ZUCKERMAN, & ROWLEY are jointly ORDERED to pay Defendants and their counsel of record, sanctions in the total amount of $1,438.90.00 (5 hrs. x $185/hr.) ($60 + $453.90 costs) no later than 15 days from the date of his hearing.

STACEY RUIZ JUAREZ has been identified by the parties as a key, integral witness to the Subject Incident. Defendants seek an order to compel deponent STACEY RUIZ JUAREZ’s compliance with a deposition subpoena served on August 18, 2018. The relevant facts, as stated in Defendants’ Motion are as follows: “On August 18, 2018, Shimmick personally served Ms. Ruiz-Juarez with a deposition subpoena ordering her personal appearance on October 2, 2018. On August 20, 2018, Shimmick served all parties with a notice of deposition on all counsel. That same day, Shimmick received Plaintiff’s notice of Ms. Ruiz-Juarez’s deposition for September 7th by mail…. On August 30th, Shimmick timely served a formal, written objection to plaintiff’s notice of deposition of Ms. Ruiz Juarez based on counsel’s failure to coordinate the date with counsel and counsel’s unavailability for the September 7th date.” (Motion to Compel Depo, 3:24-28 – 4:1-4.)

It is undisputed that Plaintiff’s counsel received Defendants’ objections to the September 7, 2018 deposition. Notwithstanding, Plaintiff went forward with the deposition of Ms. Ruiz-Juarez on September 7, 2018, despite knowing that counsel for Defendants were unavailable on that date. Consequently, Moving Defendants seek an order to compel Ms. Ruiz-Juarez’s deposition so that they, too, may depose Ms. Ruiz Juarez.

In Opposition, and in their Motion to Quash/Protective Order, Plaintiff argues that Defendants are not entitled to Ms. Ruiz-Juarez’s second deposition. Specifically, Plaintiff argues that since a first deposition already occurred on September 7, 2018, Defendant is precluded from taking the second deposition of Ms. Ruiz-Juarez without leave of court.

“If a subpoena requires the attendance of a witness or the production of…documents…the court…may make an order…directing compliance with it upon those terms or conditions as the court shall declare….” (CCP §1987.1(a).) If at the deposition, a deponent fails to answer a question or fails to produce the requested documents, then the party noticing the deposition and production of documents may bring a motion to compel an answer or to compel production. (See CCP §2025.480(a).) The Court shall impose a monetary sanction against a party, person, or attorney who unsuccessfully makes or opposes this motion unless the one subject to the sanctions acted with substantial justification or there are other circumstances that would make the imposition of the sanction unjust. (CCP §2025.480(j).)

Here, the evidence in support of Defendants’ motion demonstrates that a valid deposition subpoena was served onto Plaintiff and Ms. Ruiz-Juarez. Notwithstanding, Ms. Ruiz-Juarez failed to appear for her properly noticed deposition on October 2, 2018, and no evidence has been presented to indicate that either Plaintiff or Ms. Ruiz-Juarez served a timely objection to Defendants’ deposition subpoena.

Moreover, Plaintiff’s argument that Defendants are prohibited from taking Ms. Ruiz-Juarez’s second deposition under CCP §2025.610 is not well-taken. “Any deposition taken after the service of a written objection shall not be used against the objecting party…if the party did not attend the deposition and if the court determines that the objection was a valid one.” (CCP §2025.410.) Here, Defendants timely objected to Plaintiff’s Notice of Deposition due to Defendant’s counsel’s unavailability. Plaintiff’s counsel’s unwillingness to reschedule the deposition of such a key witness for a date where all parties could be present is unreasonable.

Defendants’ request for monetary sanctions is granted as indicated above.