Motion to Exclude Plaintiff Shamlou from Testifying at Trial; Alternative Motion to Compel Deposition; Motion for Sanctions
compensation benefits paid to or on behalf of Sehorn. ACE argues defendant Golden Link has not shown the proposed settlement is roughly proportional to the parties’ liability and apportionment thereof under Tech-Bilt, as the proposed settlement does not take ACE?s damages into account. ACE asserts the moving papers “do not provide a meaningful analysis of: ACE?s Complaint-in-Intervention; the amount of workers’ compensation benefits already paid; any ongoing or future benefit exposure; Golden Link’s comparative liability, if any; or why the settlement allocates nothing to ACE despite ACE?s asserted reimbursement rights.” Opp., 5:10-14.
This ignores the fact that ACE has the burden to prove its own damages and show a lack of good faith in the proposed settlement. ACE offers no argument or fact establishing a purported value for its claims. ACE failed to produce a PMQ for deposition as to its damages and failed to respond to a prior settlement offer from defendant. See Reply Decl. Matsuda, paras. 3-9.
It is ACE?s burden to provide facts or evidence showing its own damages and that the proposed settlement is not proportional to the value of this case. ACE failed to offer evidence in opposition to this application or in the course of discovery, despite 8 attempts by defendant to depose ACE?s PMQ on this topic. See Reply Decl. Matsuda, paras. 3-6. ACE cannot fail to offer evidence as to its own damages, then argue a proposed settlement is not proportional. ACE failed to meet its burden. GRANTED.
Shamlou v. Mercedes-Benz USA, Case no. 24VECV02166 Hearing date May 18, 2026 Defendant MBUSA?s Motion to Exclude Plaintiff Shamlou from Testifying at Trial
Plaintiff Shamlou sues defendant Mercedes-Benz USA for violations of the Song-Beverly Act. Defendant filed a motion to compel plaintiff’s deposition, denied without prejudice for lack of notice. Code Civ. Proc. §1005; 12/29/25 Min. Order. Defendant’s subsequent motion to compel the deposition and for sanctions was granted, plaintiff was ordered to appear at deposition on 3/27/26 and sanctions of $2,160 against plaintiff and counsel were ordered. 2/26/26 Min. Order.
Defendant now moves to exclude plaintiff from testifying at trial, or in the alternative for a further order compelling her deposition, as plaintiff failed to appear on the court-ordered deposition date of 3/27/26. See Decl. Achatz, para 3. Defendant seeks further sanctions for this motion and plaintiff’s nonappearance of 3/27/26. Id. at para.
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13.
Plaintiff opposes. Where a plaintiff fails to comply with a court order compelling deposition, the court may impose issue, evidentiary, or terminating sanctions, in addition to monetary sanctions. See Code Civ. Proc. §2025.450(h). Defendant attempted to depose plaintiff multiple times prior to moving for an order compelling the deposition. See Decl. Achatz, paras. 5-6.
The court granted defendant’s motion and ordered plaintiff to appear on 3/27/26. Id. at patas. 2-4. Plaintiff’s counsel notified defendant 30 minutes prior to the scheduled deposition time that plaintiff would not appear (Id. at para. 9, exh. B) and requested an alternative deposition date (para. 10). As defendant’s counsel was not available on 4/1/26, and as plaintiff failed to give timely notice of her non-appearance, defendant recorded a notice of non-appearance. Id. at paras. 10-11, exhs. B, D.
Plaintiff argues her non-appearance was due to a calendaring error. See Decl. Serrano, para.
5. A litigant has a duty to fulfill discovery obligations and obey court orders. Plaintiff and counsel are responsible for managing their calendar; calendaring mishaps are no excuse for failure to obey a court order.
Plaintiff argues the notice did not contain the Zoom link for the virtual deposition, which “was not provided until 7:23 p.m. on March 26, 2026, after the close of business and on the eve of the deposition’ and?[g]iven the timing, there was insufficient opportunity to resolve the calendaring issue and coordinate Plaintiff’s appearance.” Id. Arguments regarding the Zoom link lack merit; defendant gave notice, and the court’s order compelled plaintiff’s appearance.
Plaintiff argues she offered an alternative deposition date of 4/1/26, so sanctions are not warranted. Plaintiff has a history of failure to appear at deposition. She failed to obey a court order, despite counsel’s presence at the hearing where the order was made, and despite being subject to monetary sanctions. The court would be within its discretion to issue evidentiary sanctions on this record.
Plaintiff asserts she can sit for deposition on 5/21/26 or other dates. Decl. Serrano para. 9, exh. C. Trial is set for 6/29/26. The court orders plaintiff to appear at deposition prior to the discovery cutoff, with the date is to be decided in consultation with counsel at the hearing on 5/18/26. If plaintiff fails to make herself available, or again fails to appear at deposition, evidentiary sanctions, including exclusion of her testimony at trial, will issue. Code Civ. Proc. §2025.450(h).
Plaintiff failed to appear following court order; monetary sanctions are appropriate. As the failure to appear was allegedly the result of a calendaring failure by her counsel (See Decl. Serrano, para. 5), and as counsel failed to address the issue or give timely notice of plaintiff’s non-appearance, sanctions will be joint and several as to plaintiff and counsel.
Defendant requests filing costs of $60 and non-appearance costs of $525 (Decl. Achatz, para. 13), which are reasonable and awarded. Defendant requests 8 hours for drafting this motion at a reasonable hourly rate of $425/hour. The motion, including declaration, is 11 pages long. No reply was filed. The court awards 5 hours for motion drafting and 1 hour for hearing, totaling 6 hours at $425/hour, plus costs as above, joint and several against plaintiff and counsel, payable within 30 days.
Plaintiff argues trial must be continued to allow for deposition of defendant’s PMKs. See Decl. Serrano para.
11. The court will not consider a trial continuance on this motion.
GRANTED in part; counsel are to determine a date for deposition. If plaintiff fails to appear, the court will issue evidentiary sanctions, excluding the testimony at trial. Monetary sanctions payable as above within 30 days. Home -->)" -->