Troy Smith vs. Asitosh Kumar

34-2022-00314168-CU-PA-GDS: Troy Smith vs. Asitosh Kumar 05/18/2023 Motion to Compel - Other - Civil Law and Motion Deposition in Department 54

Tentative Ruling

Plaintiffs Troy Smith and Monique Smith’s (collectively, “Plaintiffs”) motion to compel depositions of Defendants Asitosh Kumar and Sulesh Kumar (collectively, “Defendants”) is UNOPPOSED and GRANTED as follows.

This is a personal injury action arising out of motor vehicle collision. Plaintiffs filed the operative first amended complaint on May 25, 2022.

After making several unsuccessful phone calls to defense counsel in an effort to schedule Defendants’ depositions, Plaintiffs’ counsel sent an email to Defendants’ counsel on February 2, 2023 requesting dates. (Aiken Decl., Exh. 1.) No response was received. (Aiken Decl, 2:2.) On February 10, 2023, Plaintiffs’ counsel served deposition notices scheduling Defendants’ depositions for February 28, 2023. (Aiken Decl., Exh. 2.) On February 22, 2023, Plaintiffs’ counsel emailed Defendants’ counsel to confirm the depositions, but did not receive a response. (Aiken Decl., 2:9, Exh. 3.)

On Friday, February 24, 2023, a legal assistant from Defendants’ counsel’s office emailed Plaintiff’s counsel to confirm that the deposition of Defendant Sulesh Kumar would go forward, although Defendant Asitosh Kumar was not mentioned. (Aiken Decl., Exh. 4.) Plaintiff’s counsel responded a few minutes later confirming that both depositions would go forward. (Ibid.) On the afternoon of Monday, February 27, 2023, Plaintiffs’ counsel sent a dropbox link for exhibits for the deposition. (Aiken Decl., Exh. 5.)

Defendants’ counsel responded that she sent an email to Plaintiffs’ counsel that morning informing him that her clients were not available on February 28, and that she would send new dates soon. (Ibid.) Plaintiffs’ counsel sent a reply stating that he had sent several emails regarding the depositions and that Defendants’ counsel’s assistant had confirmed the depositions. (Aiken Decl., Exh. 6.) Plaintiffs’ counsel also requested dates by March 2 or he would file a motion to compel. (Ibid.) No dates were provided by that date, leading to this motion. (See Aiken Decl., Exh. 7.)

CCP section 2025.450(a) states, in relevant part: “If, after service of a deposition notice, a party to the action without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, the party giving the notice may move for an order compelling the deponents attendance and testimony, .” Here, without serving objections, Defendants failed to appear for their properly noticed depositions. Thus, Plaintiffs’ motion to compel is GRANTED.

Defendants shall appear for their depositions by no later than June 30, 2023, or on a later date if mutually agreed to by the parties in writing.

Plaintiffs also request sanctions in the amount of $1,860, representing 4 hours of attorney work at $450 per hour plus the $60 motion filing fee. CCP section 2025.450(g)(1) states, in relevant part: “If a motion under subdivision (a) is granted, the court shall impose a monetary sanction

34-2022-00314168-CU-PA-GDS: Troy Smith vs. Asitosh Kumar 05/18/2023 Motion to Compel - Other - Civil Law and Motion Deposition in Department 54

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 sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Thus, unlike motions to compel related to written discovery, there is no requirement that the motion be opposed for sanctions to be imposed, and a court’s discretion to not impose sanctions is limited to situations where the deponent acted with substantial justification or that the imposition of the sanction would be otherwise unjust.

Since Defendants have not opposed the motion, there is no evidence before the Court to support a finding that Defendants acted with substantial justification or that other circumstances would make the imposition of sanctions unjust. Accordingly, Plaintiffs’ request for monetary sanctions against Defendants and/or Defendants’ counsel, jointly and severally, is GRANTED. However, the Court finds the amount requested to be excessive given the relatively straightforward nature of this motion. Sanctions are awarded in the amount of $960.

Sanctions to be paid by no later than June 15, 2023, and if not paid by that date, Plaintiffs may prepare for the Court’s signature a formal order granting the sanctions, which may then be enforced as a separate judgment against Defendants and/or Defendants’ counsel. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

This minute order is effective immediately. No formal order or other notice is required. (CCP § 1019.5; CRC rule 3.1312.)

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure 367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314168-CU-PA-GDS: Troy Smith vs. Asitosh Kumar 05/18/2023 Motion to Compel - Other - Civil Law and Motion Deposition in Department 54

Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.