FRANCESCO BRUNO, AN INDIVIDUAL VS ROBERTO CASTANEDA FLORES, AN INDIVIDUAL

Tentative Rulings

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Case Number: 19STLC03291 Hearing Date: September 8, 2021 Dept: 26

Bruno v. Flores, et al. 19STLC03291

MOTION TO COMPEL DEPOSITION AND REQUEST FOR SANCTIONS

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(CCP § 2025.450)

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TENTATIVE RULING:

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Defendant\r\nRoberto Castaneda Flores’ Motion to Compel Plaintiff’s Deposition and Request\r\nfor Sanctions is GRANTED. PLAINTIFF FRANCESCO BRUNO IS ORDERED TO APPEAR FOR\r\nDEPOSITION WITHIN 20 DAYS’ SERVICE OF THIS ORDER, AT A DATE AND TIME DETERMINED\r\nBY DEFENSE COUNSEL. PLAINTIFF IS ORDERED TO PAY SANCTIONS OF $391.65 TO DEFENSE\r\nCOUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

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ANALYSIS:

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Plaintiff Francesco Bruno (“Plaintiff”) filed the instant action\r\nfor motor vehicle negligence against Defendant Roberto Castaneda Flores\r\n(“Defendant”) on April 3, 2019. On July 14, 2020, the Court granted Plaintiff’s\r\ncounsel’s motion to be relieved as counsel. (Minute Order, 07/14/20.) Proof of\r\nservice of notice of the order was filed the next day.

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Defendant filed a\r\nMotion to Compel Plaintiff’s Attendance at Deposition and Request for Sanctions\r\non October 14, 2020 (“the first Motion to Compel Deposition”). The first Motion\r\nto Compel Deposition was denied on March 16, 2021. (Minute Order, 03/16/21.) Following\r\nservice of a second deposition notice, Defendant filed the instant Motion to\r\nCompel Deposition and Request for Sanctions on April 28, 2021. To date, no\r\nopposition has been filed.

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Legal Standard

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Code of Civil Procedure section 2025.450, section (a) states\r\nin relevant part:

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If, after service of a deposition\r\nnotice, a party to the action or an officer, director, managing agent, or\r\nemployee of a party, or a person designated by an organization that is a party\r\nunder Section 2025.230, without having served a valid objection under Section\r\n2025.410, fails to appear for examination, or to proceed with it, or to produce\r\nfor inspection any document, electronically stored information, or tangible\r\nthing described in the deposition notice, the party giving the notice may move\r\nfor an order compelling the deponent’s attendance and testimony, and the\r\nproduction for inspection of any document, electronically stored information,\r\nor tangible thing described in the deposition notice.

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(Code Civ. Proc., § 2025.450, subd. (a).) The motion must\r\nalso “set forth specific facts showing good cause justifying the production for\r\ninspection of any document, electronically stored information, or tangible\r\nthing described in the deposition notice” and “be accompanied by a meet and\r\nconfer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450,\r\nsubds. (b)(1), (2).) A court shall impose monetary sanctions if the motion to\r\ncompel is granted, unless the one subject to sanction acted with substantial\r\njustification or other circumstances would make the imposition of the sanction\r\nunjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)

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Discussion

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Following Plaintiff’s failure to appear for the properly noticed\r\ndeposition on April 13, 2021, defense counsel sent a meet and confer letter to\r\nPlaintiff’s address. (Motion, Gillard Decl., ¶¶6-8 and Exhs. A-C.) Plaintiff\r\nhas not responded to the meet and confer effort. (Id. at ¶9.) Accordingly,\r\nDefendant is entitled to an order compelling Plaintiff to appear for deposition\r\nand an award of sanctions. However, the sanctions sought are excessive. Under a\r\nlodestar calculation, Defendant is awarded $391.95 based on half-an-hour of\r\nattorney time billed at $300.00 per hour, $61.65 for the motion filing fee, and\r\n$180.00 for the court reporter on the April 13, 2021. (Id. at ¶10 and\r\nExh. D.)

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Conclusion

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Defendant\r\nRoberto Castaneda Flores’ Motion to Compel Plaintiff’s Deposition and Request\r\nfor Sanctions is GRANTED. PLAINTIFF FRANCESCO BRUNO IS ORDERED TO APPEAR FOR\r\nDEPOSITION WITHIN 20 DAYS’ SERVICE OF THIS ORDER, AT A DATE AND TIME DETERMINED\r\nBY DEFENSE COUNSEL. PLAINTIFF IS ORDERED TO PAY SANCTIONS OF $391.65 TO DEFENSE\r\nCOUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

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Court clerk to give notice.

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Case Number: 19STLC03291    Hearing Date: March 16, 2021    Dept: 26

Bruno v. Flores, et al

MOTION TO COMPEL DEPOSITION AND REQUEST FOR SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

Defendant Roberto Castaneda Flores’ Motion to Compel Plaintiff’s Deposition and Request for Sanctions is DENIED.

ANALYSIS:

Plaintiff Francesco Bruno (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Roberto Castaneda Flores (“Defendant”) on April 3, 2019. On July 14, 2020, the Court granted Plaintiff’s counsel’s motion to be relieved as counsel. Proof of service of notice of the order was filed the next day.

Defendant filed the instant Motion to Compel Plaintiff’s Attendance at Deposition and Request for Sanctions on October 14, 2020. To date, no opposition has been filed.

Legal Standard

Code of Civil Procedure section 2025.450, section (a) states in relevant part:

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(Code Civ. Proc., § 2025.450, subd. (a).) The motion must also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450, subds. (b)(1), (2).) A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)

Discussion

The motion is not accompanied by a declaration demonstrating that defense counsel meet and conferred with Plaintiff regarding his failure to appear for deposition. (Motion, Gillard Decl., ¶¶4-6 and Exhs. A-B.) Instead, it appears that defense counsel unilaterally scheduled the deposition for September 23, 2020 and scheduled the instant Motion to Compel Deposition following Plaintiff’s failure to appear. (Ibid.) While failing to initially confer with Plaintiff about the deposition date is not required under the law, it would demonstrate a certain courtesy for the opposing party. Failing to meet and confer after the missed deposition, however, is required under the law prior to bringing a motion to compel attendance at deposition.

Also required under the moving statute is for the moving party to “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subds. (b)(1).) While the Motion broadly explains the need for the deposition itself, no statement is made specifically regarding the documents sought in the deposition notice. (Motion, Gillard Decl., Exh. A, p. 3.)

Based on Defendant’s failure to comply with the requirements of Code of Civil Procedure section 2025.450, subdivision (b), the request to compel Plaintiff’s deposition and for an award of sanctions is denied.

Conclusion

Defendant Roberto Castaneda Flores’ Motion to Compel Plaintiff’s Deposition and Request for Sanctions is DENIED.

Court clerk to give notice.

Case Number: 19STLC03291    Hearing Date: July 14, 2020    Dept: 26

Bruno v. Flores, et al.

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2); CRC Rule 3.1362)

TENTATIVE RULING

DAG Law Firm’s Motion to Withdraw as Counsel for Plaintiff Francesco Bruno is GRANTED. PROPOSED ORDERS HAVE BEEN SUBMITTED. THIS RULING TO BE EFFECTIVE UPON FILING OF PROOF OF SERVICE OF CORRECTED, SIGNED ORDERS UPON ALL PARTIES.

Moving party to give notice to client and all parties.