Judge: Anne Hwang, Case: 20STCV40796, Date: 2023-09-12 Tentative Ruling

Case Number: 20STCV40796    Hearing Date: September 12, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On October 23, 2020, Plaintiff Enrico Obordo (“Plaintiff”) filed a complaint against Defendant Molly Yim (“Defendant”) for damages resulting from a motor vehicle accident. On August 15, 2023, Defendant moved to compel the deposition of Plaintiff. Defendant also seeks monetary sanctions against Plaintiff and Plaintiff’s counsel. This motion is unopposed. 

LEGAL STANDARD

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.  (Code Civ. Proc., § 2025.010.)  A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.  (Code Civ. Proc., § 2025.280, subd. (a).)

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled.  (Code Civ. Proc., § 2025.410, subd. (a).)  In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice.  (Code Civ. Proc., § 2025.410, subd. (c).)

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450, subd. (a).)

Code of Civil Procedure section § 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under §2025.410. The objecting party has the burden to justify objections asserted. (See Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95.) 

No meet and confer is required to compel initial deposition attendance, but instead there must be a declaration showing that moving party inquired about the nonappearance.  (Code Civ. Proc. §2025.450(b)(2).)  "Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue," including by rescheduling.  (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124.) 

DISCUSSION

A.     Motion to Compel Deposition

On May 30, 2023, Defendant served a Notice of Taking Deposition on Plaintiff, setting a deposition for July 24, 2023. Plaintiff did not respond to the request, and on the day of the scheduled deposition, Plaintiff did not appear. (Chou Decl. ¶ 8, Exh. D.) Defendant’s counsel declared that he has made efforts to reschedule the deposition, but that Plaintiff has been unresponsive. (Chou Decl. ¶ 10.)

Here, there is no evidence that Plaintiff objected to the deposition. The moving defendant also included a declaration that he attempted to inquire about the nonappearance. (Chou Decl. ¶ 10.) Since Plaintiff does not oppose or bring forth evidence explaining the nonappearance, Defendant’s motion to compel is granted. (Code Civ. Proc. § 2025.450(a).) 

Plaintiff is ordered to appear for deposition at a date, time, and location to be noticed by Defendant within 15 days.

B.     Sanctions

Additionally, Defendant also seeks monetary sanctions against Plaintiff and Plaintiff’s counsel. Code of Civil Procedure section § 2025.450(g)(1) requires the Court to impose sanctions unless it finds the deponent acted with substantial justification or there are circumstances that render imposition of sanctions unjust.

Defendant requests $811.65 in sanctions. This includes $350.00 for the court reporter fee at the July 24, 2023 deposition that Plaintiff did not attend (Chou Decl., Exh. E.); two hours of attorney fees at $200.00 per hour; and a $61.65 filing fee for this motion. Here, because the motion to compel is unopposed, Plaintiff has not offered evidence that they acted with substantial justification or that circumstances render sanctions unjust.

The Court finds the amount requested to be reasonable and awards attorney’s fees in the amount of $811.65.

CONCLUSION AND ORDER

Therefore, the Court GRANTS the motion to compel Plaintiff’s deposition and orders Plaintiff to appear for deposition within 15 days.

The Court orders Plaintiff and counsel for Plaintiff to pay jointly and severally monetary sanctions in the amount of $811.65 to counsel for Defendant.

Defendant shall give notice of the Court’s order and file a proof of service of such.