SCHORR LAW VS E. ROBERT SORACCO

Tentative Rulings

Case Number: 18STLC09449    Hearing Date: August 19, 2020    Dept: 26

MOTION TO COMPEL DEPOSITION; TERMINATING SANCTIONS

(CCP §§ 2025.420, 2023.010)

TENTATIVE RULING:

PLAINTIFF SCHORR LAW, APC’S MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND REQUEST FOR SANCTIONS IS GRANTED. DEFENDANT E. ROBERT SORACCO IS ORDERED TO APPEAR FOR DEPOSITION AT A DATE AND TIME TO BE NOTICED BY PLAINTIFF WITHIN THE NEXT 20 DAYS. DEFENDANT IS FURTHER ORDERED TO PAY SANCTIONS OF $945.00 TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER. PLAINTIFF’S MOTION IN THE ALTERNATIVE FOR TERMINATING SANCTIONS IS DENIED.

ANALYSIS:

Plaintiff Schorr Law (“Plaintiff”), a law firm, initiated this action against its former client, Defendant E. Robert Soracco (“Defendant”), on July 13, 2018 for failure to pay attorney’s fees for the legal services provided. Defendant then filed a Cross-Complaint on November 28, 2018 for breach of the retainer agreement, among other claims. On January 29, 2019, the court sustained Plaintiff’s demurrer to the Cross-Complaint without leave to amend. On July 24, 2019, the Court denied Defendant’s motion to dismiss the Complaint. On November 26, 2019, Plaintiff filed the instant Motion to Compel Deposition, or in the alternative, for Terminating Sanctions; and Request for Monetary Sanctions. To date, no opposition has been filed.

Motion to Compel Deposition and Request for Sanctions

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 meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

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).)

Plaintiff presents evidence that Defendant failed to appear for his properly noticed deposition on November 1, 2019. (Motion, Schorr Decl., ¶¶3-8 and Exhs. A-B.) In fact, Defendant refused to appear until after January 12, 2020 due to health issues. (Id. at ¶8 and Exh. B.) Defendant, however, did not offer any details or proof regarding these health issues. (Ibid.) Following Defendant’s failure to appear, Plaintiff called Defendant on November 15, 2019 and left a voicemail seeking alternative deposition dates. (Id. at ¶9.) This satisfies the statute’s meet and confer requirement. Defendant, however, did not respond to reschedule the deposition nor has he filed an opposition to the instant Motion to Compel Deposition. (Ibid.)

Sanctions are warranted pursuant to Code of Civil Procedure, section 2023.030, subdivision (d) and section 2025.450, subdivision (g)(1,) and have been properly noticed. However, the Court finds the amount sought is excessive. Using a lodestar calculation, sanctions are awarded against Defendant in the reduced amount of $945.00 based on three hours of attorney time billed at $295.00 per hour and $60.00 for the filing fee. (Id. at ¶¶15, 17.)

Based on the Defendant’s failure to appear for the properly noticed deposition and continuing lack of cooperation in rescheduling, the Motion to Compel Attendance at Deposition and Request for Sanctions is GRANTED. DEFENDANT IS ORDERED TO APPEAR FOR DEPOSITION AT A DATE AND TIME TO BE NOTICED BY PLAINTIFF WITHIN THE NEXT 20 DAYS. SANCTIONS OF $945.00 ARE TO BE PAID TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

Motion for Terminating Sanctions

In light of the order compelling Defendant’s deposition, the alternative request for terminating sanctions is denied. The Court further notes that terminating sanctions are only appropriate when a party willfully disobeys a discovery order. (Code Civ. Proc., §§ 2023.010, subds. (d), (g); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Here, Plaintiff has not shown that Defendant failed to comply with any order to produce discovery.

Conclusion

PLAINTIFF SCHORR LAW, APC’S MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND REQUEST FOR SANCTIONS IS GRANTED. DEFENDANT E. ROBERT SORACCO IS ORDERED TO APPEAR FOR DEPOSITION AT A DATE AND TIME TO BE NOTICED BY PLAINTIFF WITHIN THE NEXT 20 DAYS. DEFENDANT IS FURTHER ORDERED TO PAY SANCTIONS OF $945.00 TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER. PLAINTIFF’S MOTION IN THE ALTERNATIVE FOR TERMINATING SANCTIONS IS DENIED.

Moving party to give notice.

Case Number: 18STLC09449    Hearing Date: December 10, 2019    Dept: 94

MOTION TO DEEM THE TRUTH OF MATTERS IN REQUESTS FOR ADMISSIONS TO DEFENDANT AS ADMITTED AND FOR MONETARY SANCTIONS

(CCP § 2033.280)

TENTATIVE RULING:

Plaintiff Schorr Law, APC’s Motion to Deem the Truth of Matters Specified in Requests for Admissions to Defendant as Admitted and for Monetary Sanctions is GRANTED.

ANALYSIS:

I. Background

Plaintiff Schorr Law (“Plaintiff”), a law firm, initiated this action against its former client, Defendant E. Robert Soracco (“Defendant”), on July 13, 2018 for failure to pay attorney’s fees for the legal services provided. Defendant then filed a Cross-Complaint on November 28, 2018 for breach of the retainer agreement, among other claims. On January 29, 2019, the court sustained Plaintiff’s demurrer to the Cross-Complaint without leave to amend.

On June 13, 2019, Plaintiff served Requests for Admissions, Set One, on Defendant E. Robert Sorraco (“Defendant”). (Marquez Decl. ¶ 3, Exh. 1.) To date, Plaintiff has not received any discovery responses to the propounded discovery requests from Defendant. (Id. at ¶ 6.) As a result, Plaintiff filed the instant Motion to Deem the Truth of Matters Specified in Requests for Admissions to Defendant as Admitted and for Monetary Sanctions (the “Motion”) on October 24, 2019.

II. Analysis & Order

Defendant has failed to respond to Plaintiff’s Requests for Admissions. Accordingly, the unopposed Motion is GRANTED. Pursuant to CCP § 2033.280, the truth of the matters specified in Plaintiff’s Requests for Admissions to Defendant is hereby deemed admitted.

As the Motion has been granted, monetary sanctions are mandatory under CCP § 2033.280(c). Given the simplicity of the Motion and the lack of opposition and reply, the Court awards Plaintiff $560 ($250/hr. x 2 hrs., plus $60 filing fee) in reasonable attorney’s fees and costs as monetary sanctions against Defendant. Sanctions are to be paid within thirty (30) days from the date of Plaintiff serving a notice of this Order on Defendant.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.