JOSE GARCIA VS LUIS IZARRARAZ, ET AL.

Tentative Rulings

Case Number: 18STLC01828    Hearing Date: November 21, 2019    Dept: 94

MOTION TO COMPEL DEPOSITION; REQUEST FOR SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

Defendant Andy Garcia’s Motion for an Order Compelling Plaintiff Jose Garcia’s Attendance at Deposition and for Monetary Sanctions is DENIED.

GROUNDS FOR MOTION: The Court should compel Plaintiff to appear and testify at his properly noticed deposition. Also, the Court should sanction Plaintiff and his counsel for failing to appear. Sanctions are sought in the amount of $1,860.00.

ANALYSIS:

Plaintiff Jose Garcia (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants Luis Izarraraz, Alfonso Izarraraz, and Andy Garcia (“Defendants”) on February 2, 2018. Defendant Garcia filed the instant Motion to Compel Plaintiff’s Attendance at Deposition and Request for Sanctions (“the Motion”) on October 2, 2019. 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

As an initial matter, the Motion is not accompanied by a proof of service. The only proof of service attached to the Motion is for a Motion to Deem Request for Admissions Set One Admitted. (Motion, p. 13.) Failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) The Court cannot grant a motion without proper notice to the other parties.

Defendant Garcia presents evidence that Plaintiff failed to appear for his properly noticed depositions on November 1, 2018, February 21, 2019 and October 22, 2019. (Motion, Bietsy Decl. and Exhs. A-B.) However, the Motion is not accompanied by a meet and confer declaration demonstrating that Defendant Garcia reached out to Plaintiff to resolve this discovery dispute following Plaintiff’s failures to appear. (Ibid.) The Motion itself contends, without evidence, that Defendant Garcia tried to informally resolve the issue. But as far as the Court can see, this simply means Defendant Garcia “provided Plaintiff sufficient and ample time to provide alternative dates for the deposition, yet Plaintiff has failed to appear.” (Motion, p. 4:1-2.) Waiting for the other party to reach out is not a “reasonable and good faith attempt at an informal resolution.” (Code Civ. Proc., § 2016.040.) As the meet and confer effort and declaration are mandatory, the Court finds Defendant Garcia has failed to meet the requirements of the moving statute.

Based on the lack of proper notice of the instant Motion and failure to meet and confer with Plaintiff in good faith regarding the failure to appear at deposition, Defendant Andy Garcia’s Motion to Compel Plaintiff’s Attendance at Deposition and Request for Sanctions is DENIED.

Court clerk to give notice.

Case Number: 18STLC01828    Hearing Date: November 20, 2019    Dept: 94

Garcia v. Izarraraz et al.

MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS, SUPPLEMENTAL INTERROGATORIES, AND SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS

(CCP §§ 2030.290; 2031.300)

TENTATIVE RULING:

Defendant Andy Garcia’s (1) Motion to Compel Plaintiff Jose Garcia to Provide Responses to Form Interrogatories, Set One; Request for Monetary Sanctions; (2) Motion to Compel Plaintiff Jose Garcia to Provide Responses to Requests for Production of Documents, Set One; Request for Monetary Sanctions; (3) Motion to Compel Plaintiff Jose Garcia to Provide Responses to Supplemental Interrogatories, Set One; Request for Monetary Sanctions; and (4) Motion to Compel Plaintiff Jose Garcia to Provide Responses to Supplemental Requests for Production of Documents, Set One; Request for Monetary Sanctions are GRANTED. VERIFIED RESPONSES WITHOUT OBJECTIONS TO THE FORM INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS, SUPPLEMENTAL INTERROGATORIES, AND SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS ARE TO BE SERVED WITHIN 20 DAYS.

SANCTIONS ARE AWARDED AGAINST PLAINTIFF JOSE GARCIA AND HIS COUNSEL, JOINTLY AND SEVERALLY, IN THE AMOUNT OF $840, TO BE PAID TO DEFENDANT ANDY GARCIA, BY AND THROUGH HIS COUNSEL, WITHIN 30 DAYS.

ANALYSIS:

Procedural History

Plaintiff Jose Garcia (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants Luis Izarraraz, Alfonso Izarraraz, and Andy Garcia on February 2, 2018.

On July 5, 2018, Luis Izarraraz and Alfonso Izarraraz filed a cross-complaint for indemnity against defendant Andy Garcia (“Defendant”).

On September 14, 2018, Defendant filed a cross-complaint for indemnity against Luis Izarraraz and Alfonso Izarraraz.

Defendant filed the instant discovery motions on October 2, 2019. To date, no oppositions have been filed.

Motions to Compel Responses to Form Interrogatories, Set One and Request for Production of Documents, Set One and Motions to Compel Responses to Supplemental Interrogatories, Set One and Request for Production of Documents, Set One

Defendant served form interrogatories and requests for production of documents on Plaintiff on October 18, 2018. (Motions to Compel Form Interrogatories and Request for Production of Documents, Biesty Decl., ¶ 3, Exh. A, B.) To date, Plaintiff has not provided any verified responses to the Form Interrogatories, Set One or the Request for Production of Documents, Set One. (Id. at ¶ 4-5.) Subsequently, Defendant served supplemental interrogatories and requests for production of documents on Plaintiff on May 24, 2019. (Motions to Compel Supplemental Interrogatories and Request for Production of Documents, Biesty Decl., ¶ 3, Exh. A, B.) To date, Plaintiff has not provided any verified responses to the Supplemental Interrogatories, Set One or the Request for Production of Documents, Set One. (Id. at ¶¶ 4-5.)

There is no requirement for a prior meet and confer effort before a motion to compel initial responses can be filed. Further, the motion can be brought any time after the responding party fails to provide the responses. Based on the foregoing, Defendant Andy Garcia is entitled to an order that Plaintiff serve verified responses to both the initial and supplemental interrogatories and document demands, without objections. (Code Civ. Proc., §§ 2030.290, 2031.300.) The responses are due within 20 days.

The Court also finds that Plaintiff’s failure to respond to Defendant’s written discovery requests are a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) Sanctions have been sufficiently noticed against Plaintiff and Plaintiff’s attorneys; however, the amount requested is excessive given the simplicity of these nearly identical motions. Plaintiff and Plaintiff’s counsel, jointly and severally, are ordered to pay sanctions in the amount of $840, based on three (3) hours of attorney time billed at $200 an hour, plus four filing fees of $60.00 each, within 30 days. (Motions, Biesty Decl., ¶¶ 4-5.)

Moving party to give notice.