Ponce v. CalEnergy Operating Corporation et al

Filing 37

ORDER Granting in Part Defendant's 36 Motion to Compel Plaintiff's Deposition: Plaintiff to appear for his deposition by December 15, 2023. Plaintiff must pay this sanction by December 15, 2023, and must file with the Court a Notice of Payment of sanctions by December 22, 2023. Signed by Magistrate Judge Lupe Rodriguez, Jr on 11/13/2023. (All non-registered users served via U.S. Mail Service)(exs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALBERTO PONCE,
Plaintiff,

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v.

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CALENERGY OPERATING
CORPORATION, et al.,

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Case No.: 22cv1808-W(LR)
ORDER GRANTING IN PART
DEFENDANT’S MOTION TO
COMPEL PLAINTIFF’S
DEPOSITION

Defendants.

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[ECF No. 36.]

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On November 3, 2023, Defendant CalEnergy Operating Corporation

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(“Defendant”) and Plaintiff Alberto Ponce (“Ponce”) filed a joint motion to address a

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discovery dispute in which Defendant requests that the Court compel Plaintiff to appear

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for his deposition and impose monetary sanctions against him, or in the alternative, an

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order issuing terminating sanctions. (See ECF No. 36, Joint Mot. to Compel (“MTC”).)

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For the reasons stated below, the Court GRANTS Defendant’s motion to compel insofar

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as it seeks an order requiring Plaintiff to appear for his deposition and imposing monetary

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sanctions against him. As will be reiterated below, the Court cautions Plaintiff that

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the failure to comply with subsequent orders will likely subject him to further

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sanctions, up to and including dismissal of this action in its entirety.

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///
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I.

RELEVANT BACKGROUND & PROCEDURAL HISTORY

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Plaintiff—a former mechanic at Defendant’s facilities in Imperial County,

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California—filed a complaint in Imperial County Superior Court on October 20, 2022,

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alleging wrongful termination and approximately ten additional employment causes of

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action. (See ECF No. 1-2 at 5.) Defendant removed the action to this court on November

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17, 2022, and filed an answer on the same day. (See ECF Nos. 1 & 2.) The undersigned

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held an Early Neutral Evaluation (“ENE”) and Case Management Conference (“CMC”)

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and issued a scheduling order regulating a discovery and other pretrial proceedings on

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February 2, 2023. (See ECF No. 10.) The scheduling order set a fact discovery cutoff of

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July 28, 2023. (See id. at 3.)
Two days before the fact discovery cutoff, the parties filed a joint motion

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requesting that they be allowed to complete Plaintiff’s deposition past the fact discovery

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deadline, but no later than August 31, 2023. (See ECF No. 24 at 1-3.) The joint motion

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noted that the parties had engaged in settlement discussions that proved unsuccessful, that

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they were attempting to re-start settlement negotiations, and that Plaintiff would not be

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available until the month of August for his deposition. (See id.) The Court granted that

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motion, allowing Plaintiff’s deposition to be completed by August 31, 2023. (See ECF

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No. 25.) On August 28, 2023, the parties filed a second joint motion requesting that the

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Court further extend the deadline by which they be allowed to conduct Plaintiff’s

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deposition—indicating that Plaintiff had chosen September 20, 2023 to appear and testify

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at his deposition. (See ECF No. 28 at 2.) The Court granted this request as well, setting

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the deadline by which the parties were to complete Plaintiff’s deposition on September

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20, 2023. (See ECF No. 29.)

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It was not until the eve of a scheduled telephonic case management conference

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(“TCMC”) the following month that the Court was alerted to the magnitude of the issues

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that led to the filing of the instant motion to compel. On October 3, 2023, Plaintiff’s

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counsel filed an ex parte motion to withdraw as counsel of record for Plaintiff without

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substitution, explaining that Plaintiff had “failed to respond to any and all of Counsel’s
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several communication attempts regarding this case.” (See ECF No. 30 at 1.) In support

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of that motion, Plaintiff’s counsel, Camron Dowlatshahi, attached two previous emails to

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Plaintiff dated in September of 2023 that had gone unanswered. (See id. (citing ECF No.

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30-1, Camron Dowlatshahi Decl., Ex. A).) At the TCMC the following day, the Court

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expressed concern about Plaintiff’s counsel’s lack of contact with his client, as well as

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counsel’s failure to inform the Court about these problems before filing the motion to

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withdraw as counsel of record, and set a follow-up discovery conference for October 20,

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2023. (See ECF No. 32.) The Court explained that if Plaintiff’s counsel had not made

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any progress in contacting Plaintiff by the day of the discovery conference, the Court

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would be forced to allow Defendant to file a motion to compel Plaintiff’s attendance at

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his deposition. District Judge Thomas J. Whelan subsequently denied Plaintiff’s

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counsel’s motion to withdraw on October 11, 2023, citing concerns that Plaintiff’s

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counsel had not even attempted to inform Plaintiff of his plan to withdraw in advance of

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the follow-up discovery conference before the undersigned on October 20, 2023. (See

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ECF No. 33.)

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Plaintiff’s counsel was not able to contact him by the day of the follow-up

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discovery conference. After conferring again with the parties, the Court set a briefing

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schedule for Defendant to file a motion to compel Plaintiff’s attendance at his deposition

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in the joint motion format required by the undersigned’s civil chambers rules. (See ECF

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No. 35.) The instant motion to compel followed. (See ECF No. 36.) In the joint motion,

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Defendant provides additional context surrounding Plaintiff’s failures to attend his

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deposition, including that Defendant’s counsel has sent three notices of Plaintiff’s remote

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deposition to Plaintiff and his counsel, that Plaintiff’s counsel has repeatedly asked for

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extensions of Plaintiff’s deposition after initially agreeing to dates with defense counsel,

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and that Plaintiff’s counsel did not inform defense counsel of his inability to contact his

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client until September 15, 2023, five days before the third-amended noticed date of

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Plaintiff’s deposition. (See id. at 2-5 (citing ECF No. 36-1, Joseph Desiderio Decl.

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(“Desiderio Decl.”), Exs. A-O).) These attempts to take Plaintiff’s deposition culminated
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in Defendant noting Plaintiff’s non-attendance on the record at his third-amended noticed

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deposition on September 20, 2023—the last day of the most recent extension period

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granted by the undersigned. (See id. at 4 (citing Desiderio Decl., Ex. O).)

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Defendant contends that Plaintiff’s repeated failures to attend his noticed

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deposition merit an order compelling his appearance and imposing monetary sanctions to

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compensate Defendant’s counsel for its time in repeatedly rescheduling, preparing for,

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and attending Plaintiff’s noticed deposition, as well as the time spent preparing the instant

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motion. (See id. at 5-9.) Alternatively, Defendant requests that the Court issue

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terminating sanctions, citing the prejudice that Defendant will experience from taking

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Plaintiff’s deposition this late in the discovery process, and the unlikely utility of

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monetary sanctions against Plaintiff, who has apparently severed all communication with

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his counsel and is no longer interested in litigating this case. (See id. at 7-8.) Plaintiff’s

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counsel does not oppose either request. (See id. at 9.)

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II.

DISCUSSION

Under Federal Rule of Civil Procedure 30(a), a party may, by oral questions,

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depose any person without leave of court subject to certain exceptions which are not

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applicable here. See Fed. R. Civ. P. 30(a)(1). A party who wishes to depose a person by

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oral questions must give reasonable written notice to every other party in the action. Fed.

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R. Civ. P. 30(b)(1). The notice must state the time and place of the deposition, the

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deponent’s name and address (if known), and the method for recording the testimony.

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Fed. R. Civ. P. 30(b)(1), (3). Unless the court orders otherwise, testimony at a deposition

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may be recorded by audio, audiovisual, or stenographic means.

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Pursuant to Rule 37(d), a party who fails to appear for his or her deposition after

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being served with a proper notice may be sanctioned. Fed. R. Civ. P. 37(d)(1)(A)(i).

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Applicable sanctions under Rule 37(d) include: (1) designating facts be taken as

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established for purposes of the action, as the moving party claims; (2) prohibiting the

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disobedient party from supporting or opposing particular claims or defenses, or from

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introducing designated matters into evidence; (3) striking pleadings; (4) staying further
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proceedings until a court order is obeyed; (5) dismissing the action in whole or in part; or

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(6) requiring the party failing to act to pay the reasonable expenses, including attorney’s

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fees caused by the failure, unless the failure was substantially justified or other

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circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(d)(3) (citing Fed. R.

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Civ. P. 37(b)(2)(A)(i)-(vi)).

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As an initial matter, the Court concludes that Plaintiff should be compelled to

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appear for his oral deposition on a date and time certain. Defendant’s motion and the

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declaration concurrently submitted by Defendant’s counsel demonstrate that Plaintiff’s

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deposition was properly noticed on multiple occasions and that he failed to appear

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without notice or a proper excuse. (See Desiderio Decl., Exs. A, E, J, L.) Defendant also

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made multiple good faith efforts to meet and confer with Plaintiff and his counsel before

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filing the instant motion, and Plaintiff’s counsel even agreed to a final deposition date on

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September 20, 2023. (See id. Exs. B, C, D, F, G, H, I, K, M, N.) Although it appears

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that Plaintiff’s counsel only admitted to the lack of communication with their client

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shortly before his deposition was scheduled to take place after the third-amended notice

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was served on September 15, 2023, Defendants are still entitled to depose Plaintiff under

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Federal Rule of Civil Procedure 30(a). The Court will give Plaintiff and his counsel the

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opportunity to meet and confer with defense counsel about a mutually agreeable

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deposition date, but if no agreement is reached, Plaintiff must appear at a date selected by

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defense counsel. Regardless of which date the parties choose, Plaintiff must appear

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for his deposition by December 15, 2023. Plaintiff is cautioned that any further

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failures to appear at his deposition will subject him to additional sanctions as

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provided for in Fed. R. Civ. P. 37(b)(2), which may include an order to dismiss this

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action in whole or in part.

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Second, the Court deems it appropriate to impose sanctions upon Plaintiff (not

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Plaintiff’s counsel) based on his failure to appear at his noticed deposition and the waste

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of the parties’ resources in continually rescheduling his deposition. The Court has broad

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discretion to determine appropriate attorney’s fees. See Paul, Johnson, Alston & Hunt v.
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Graulty, 886 F.2d 268, 272 (9th Cir. 1989); see also Konikow v. Cnty. of San Bernardino,

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Case No. ED CV 18-412-DMG (SPx), 2019 WL 3064107, at * 2 (C.D. Cal. Apr. 22,

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2019) (finding monetary sanctions in the form of attorney’s fees and costs of recording

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deposition that plaintiff failed to appear for appropriate under Federal Rule of Civil

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Procedure 37(a)(5)). To compensate for costs associated with Plaintiff’s failure to attend

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his deposition, Defendant seeks: (1) $647 in court reporter and transcript costs associated

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with deposition and recording a statement of non-appearance on the day of Plaintiff’s

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deposition; (2) $2,652 in attorney’s fees for 5.2 hours of Defendant’s counsel’s time at an

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hourly rate of $510 per hour to compensate Defendant for the costs of bringing the instant

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motion; and (3) $204 in attorney’s fees for 0.4 hours of defense counsel’s time appearing

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at Plaintiff’s noticed deposition and recording his non-appearance, totaling $3,503. (See

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Desiderio Decl. at 5.) The Court finds that these costs were a direct result of Plaintiff’s

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failures to attend his deposition and will adequately compensate Defendant for the time

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spent addressing these issues. Accordingly, the Court ORDERS Plaintiff to pay

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Defendant $3,503 incurred as a result of his failure to appear for his deposition. Plaintiff

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must pay this sanction by December 15, 2023 and must file with the Court a Notice of

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Payment of sanctions by December 22, 2023.

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Finally, to the extent that Defendant asks the Court to dismiss Plaintiff’s claims

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based on the failures to participate in the discovery process noted above, the Court

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concludes that terminating sanctions would be an unduly harsh penalty at this juncture.

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Federal Rule of Civil Procedure 37(b) and (d) authorize a district court to dismiss an

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action if a party fails to appear for his or her deposition, respond to properly served

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discovery requests, or comply with a court order. Fed. R. Civ. P. 37(b), (d). Dismissal is

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appropriate only when the non-complying party’s behavior demonstrates “willfulness,

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bad faith, or fault.” Hyde & Drath v. Baker, 24 F.d3d 1162, 1167 (9th Cir. 1994).

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“‘disobedient conduct not shown to be outside of the control of the litigant is sufficient to

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demonstrate willfulness, bad faith, or fault.’” Jorgensen v. Cassiday, 320 F.3d 906, 912

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(9th Cir. 2003) (quoting Hyde & Drath, 24 F.3d at 1166). Before dismissing a case,
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however, a court should consider the following factors: “(1) the public’s interest in

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expeditious resolution of litigation, (2) the court’s need to manage its dockets, (3) the risk

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of prejudice to the party seeking sanctions, (4) the public policy favoring disposition of

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cases on their merits, and (5) the availability of less drastic sanctions.” Hyde & Drath, 24

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F.3d at 1166 (citing Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990)). “‘The

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first two of these factors favor the imposition of sanctions in most cases, while the fourth

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cuts against a default or dismissal sanction. Thus the key factors are prejudice and

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availability of lesser sanctions.’” Stars’ Desert Inn Hotel & Country Club, Inc. v.

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Hwang, 105 F.3d 521, 524 (9th Cir. 1997) (quoting Wanderer, 910 F.2d at 656).

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Indeed, the fifth factor listed above—the availability of lesser sanctions at this

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point in the litigation—weighs heavily against dismissal. Defendant argues that it has

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been “severely prejudiced” by Plaintiff’s failure to appear for his properly noticed

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deposition before the fact discovery deadline has passed. (See MTC at 7.) Without

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Plaintiff’s deposition taking place in a timely manner, Defendant contends that it will be

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unable to pursue any follow-up discovery that based on any new information identified in

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deposition testimony. (See id.) Further, Defendant notes its skepticism “that a lesser

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sanction imposed by this Court will have any impact [on] Plaintiff, especially given that

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he has not been communicating with his counsel.” (Id. at 8.) Although these concerns

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are well-taken, they are not without remedy at this stage in the litigation. For instance,

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the Court is particularly concerned by Plaintiff’s counsel’s representations about the

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extent of their efforts to communicate with their client, especially given that the only

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basis for Plaintiff’s counsel’s motion to withdraw were two emails to Plaintiff’s last

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known email address—one day apart—that went unanswered. (See ECF No. 33 at 4.) It

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is entirely possible that Plaintiff’s counsel will be able to locate Mr. Ponce in the coming

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weeks, and that his deposition will be able to proceed without incident. Moreover, even

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if Defendant discovers additional information during Plaintiff’s deposition, the parties

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can request the Court’s permission to conduct additional follow-up discovery

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proportional to any newly obtained information. Accordingly, both the prejudice
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suffered by Defendant and the availability of lesser sanctions weigh against dismissal at

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this time.

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IV.

CONCLUSION & ORDER

Although terminating sanctions against Plaintiff would be inappropriate at this

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juncture, Plaintiff has repeatedly failed to appear for his deposition after it was properly

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noticed by Defendant throughout the fact discovery period in this case. Accordingly, the

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Court ORDERS Plaintiff to appear for his deposition by December 15, 2023.

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Additionally, Plaintiff is ORDERED to pay Defendant $3,503 incurred as a result of his

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failure to appear for his deposition. Plaintiff must pay this sanction by December 15,

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2023 and must file with the Court a Notice of Payment of sanctions by December 22,

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2023. Plaintiff is cautioned that any further failures to appear at his deposition will

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likely subject him to additional sanctions as provided for in Fed. R. Civ. P. 37(b)(2),

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which may include an order to dismiss this action in whole or in part.

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IT IS SO ORDERED.
Dated: November 13, 2023

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