Case Number: BC592563 Hearing Date: January 17, 2018 Dept: 78

Superior Court of California
County of Los Angeles
Department 78

JACOB RAMIREZ,

Plaintiff,

vs.

WESTERN NATIONAL CONTRACTORS, INC., et al.,

Defendants.

Case No.:

BC592563

Hearing Date:

January 17, 2018

[TENTATIVE] RULING RE:

Defendant MISSION VIEJO ORNAMENTAL IRON, INC. AND INTERVENOR, HOUSTON CASUALTY COMPANY, on behalf of DEFENDANT VER-O-ROSES MOTION TO COMPEL DEPOSITION AND REQUEST FOR MONETARY SANCTIONS.

Defendants’ Motion to Compel Deposition is GRANTED. The deposition of Dr. Brooks shall take place within fourteen days of this order. Jacob Ramirez’s counsel is to propose by email to Defendants’ counsel Ms. Leineweber within two days of this hearing three available dates for Dr. Brooks to be deposed. Defendants shall then set the deposition on one of the available dates, or propose alternative dates, potentially within a longer time frame.

The court also GRANTS Defendants’ request for sanctions as against Plaintiff Jacob Ramirez and his attorney of record in the amount of $1,776.05. Sanctions against Dr. Brooks are denied. Defendants’ request for imposition of contempt sanctions is also denied.

Factual Background

This is a personal injury negligence case. Plaintiff Jacob Ramirez (“Ramirez”) alleges that on or about March 19, 2015, named defendants Western National Contractors, Inc. and Western National Contractors (“Western National) so negligently constructed, maintained, monitored, controlled, repaired, cleaned and otherwise managed the certain premises at the Playa Vista Construction site at Block 5 in the second story of the parking structure so that Ramirez fell down a flight of approximately 20 concrete stairs. (Complaint at p. 5.) The Complaint alleges that Western National failed to warn plaintiff and others of certain defects and that the failure of Western National to warn plaintiff of the aforesaid dangerous condition caused and contributed to plaintiff’s fall. (Ibid.)

procedural history

Ramirez filed his Complaint on August 25, 2015, alleging a single cause of action for premises liability against Western National.

On January 21, 2016, Ramirez filed an Amendment to the Complaint naming Ver-O-Roses Maintenance, Inc. dba Avor, Inc. (“Avor”) as Doe No. 1 and a separate Amendment to the Complaint naming Mission Viejo Ornamental Iron, Inc. as Doe No. 2. On March 25, 2016, Avor filed an Answer to the Complaint. Western National filed its Answer on November 18, 2016.

On July 12, 2017, this court denied Western National’s Motion for Summary Judgment.

On January 8, 2018, this court granted Western National’s Motion to Conduct Mental Examination on Ramirez.

PRE-FILING HISTORY

On September 5, 2017, defendants Mission Viejo, Ver-O-Roses, and Houston Casualty (hereafter “Defendants”) served a deposition subpoena on Dr. Leon Brooks, Ramirez’s treating physician. (Leineweber Decl. ¶ 5, Exh. B.) The subpoena set the deposition for September 25, 2017. (Ibid.)

Dr. Brooks notified Defendants that he was not available for deposition on September 25, 2017, so it was agreed that his deposition would go forward on October 10, 2017. (Id. ¶ 6.) Defendants then served an amended deposition notice on all parties, reflecting the agreed upon date. (Ibid.)

On October 9, 2017, Defendants’ counsel received a voicemail from Ramirez’s counsel’s office, requesting confirmation that Dr. Brooks’s deposition was still set for the next day. (Id. ¶ 7.) Defendants’ counsel confirmed with Ramirez and Dr. Brooks’s office that the deposition was going forward. (Ibid.)

The next morning, before the deposition was to take place, Ramirez’s counsel called Defendants and told them that Dr. Brooks’s deposition would not be going forward because he, Ramirez’s counsel, was unavailable. (Id. at ¶ 9.)

Defendants’ counsel spoke to Dr. Brooks and told him that he remained under subpoena, that no timely objection had been made to the deposition, and that the deposition would go forward. (Id. at ¶ 12.) Dr. Brooks told Defendants’ counsel that he would not appear for the deposition on the advice of Ramirez’s counsel. (Ibid.)

An associate from Defendants’ counsel’s office appeared for the deposition on October 10, 2017, and took a non-appearance. (Id. at ¶ 13, Exh. F.)

Ramirez’s counsel contacted Defendants eight days after the deposition would have taken place, notifying Defendants that Ramirez’s counsel now represented Dr. Brooks. (Id. at ¶ 14, Exh. G.)

On October 24, 2017, Defendants applied ex parte for an order compelling the deposition of Dr. Brooks, which this court denied for lack of urgency.

The parties met and conferred by email on November 1, 2017. (Id. at ¶ 19, Exh. J.) Specifically, counsel for Defendants Michael D’Andrea sent an email to counsel for Ramirez, Robert Stoll, requesting an explanation for Dr. Brooks refusing to show up and requesting payment of Defendants’ fees and cancellation costs. (See Ex. J.) Ramirez’s attorney Stoll responded the same day offering to cooperate and meet and confer further. (Ex. J at p. 2.) Defendants’ attorney Leineweber responded that she would take the motion off calendar if they could set a deposition by November 22 and if Ramirez paid Defendants’ fees and costs.

The present Motion to Compel Deposition was filed on November 2, 2017, and was served by mail on the same day. No Opposition has been filed.

MOTION TO COMPEL DEPOSITION

A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. § 2025.450, subd. (a).)

As an initial matter, the court finds that Defendants have properly inquired with Dr. Brooks (or his counsel) as to his non-appearance at the deposition before bringing this motion. (Code Civ. Proc. § 2025.450, subd. (b)(2); Leineweber Decl. ¶ 12, Exh. J.)

The court finds that a notice of deposition was properly served on all parties indicating that Dr. Brooks was to be deposed on October 10, 2017. (Leineweber Decl. Exh. C.) No party offered timely objections to this notice,[1] but Dr. Brooks failed to appear. No opposition to the motion has been filed, and thus no justification has been provided by Ramirez as to why counsel cancelled the deposition at Dr. Brooks at the last minute.

The court therefore GRANTS Defendants’ Motion to Compel Deposition. The deposition of Dr. Brooks shall take place within fourteen days of this order. Ramirez to propose by email to Defendants’ counsel Ms. Leineweber within two days of this hearing three available dates for Dr. Brooks to be deposed. Defendants shall then set the deposition on one of the available dates, or propose alternative dates, potentially within a longer time frame.

SANCTIONS

If a motion to compel deposition is granted, “the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court 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. § 2025.450, subd. (g)(1).) The court may likewise grant sanctions on the motion of “motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, . . . unless the court 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. § 2025.450, subd. (g)(2).)

Code of Civil Procedure § 2023.030, subd. (a), also authorizes this court to “impose a monetary sanction ordering 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.”

Defendants here seek $5,766.05 in monetary sanctions, representing 29.5 hours of attorney work billed at $180 per hour. (Leineweber Decl. ¶ 24.) This includes 13.5 hours billed for work performed on ex parte applications and their associated costs, which this court denied, and for which it will not order sanctions. (Leineweber Decl. ¶¶ 20–21.)

Defendants seek sanctions against Ramirez, his counsel, and Dr. Brooks. Given what appears to be an instruction by Ramirez’s counsel for Dr. Brooks not to appear, the court denies the request to impose sanctions on Dr. Brooks. Instead, sanctions will be ordered as to Ramirez and his counsel only.

The court accordingly GRANTS Defendants’ request for sanctions, but reduces the sanctions awarded pursuant to the above statutes to the amount of $1,776.05, as follows. This amount includes 3 hours preparing the motion and 3 hours traveling to and appearing for the motion at $180 per hour, as well as the $60 filing fee. As to the deposition, the court finds that the time spent by the associate at $180 per hour to attend the deposition is appropriate, but not the preparation time, which would have been necessary if Dr. Brooks showed up and, further, this time will prepare the associate for the future deposition of Dr. Brooks. The court allocates two hours at $180 per hour for this purpose. The court also orders payment of the court reporter fee of $276.05.

Defendants also seek contempt sanctions against Dr. Brooks and his counsel, Robert Stoll, under Code of Civil Procedure § 2020.240 for failure to obey a deposition subpoena. (Motion at pp. 9–10.) Contempt sanctions are authorized against “[a] deponent who disobeys a deposition subpoena in any manner described in subdivision (c) of Section 2020.220,” which requires a deponent’s “[p]ersonal attendance and testimony, if the subpoena so specifies.” (Code Civ. Proc. §§ 2020.240; 2020.220, subd. (c).)

The court finds that the circumstances here do not support contempt sanctions, and the request to issue contempt sanctions or to set an OSC re issuance of contempt sanctions is denied. Rather, attorneys’ fees, the cost of the motion, and the cost of the court reporter are ordered to make Defendants whole. If Dr. Brooks fails to appear within the next fourteen days, then Defendants may seek an additional remedy, as appropriate.

Defendants to give notice.

DATED: January 17, 2018 ________________________________

Hon. Gail Ruderman Feuer

Judge of the Superior Court