Judge: Anne Hwang, Case: 22STCV25492, Date: 2024-10-15 Tentative Ruling

Case Number: 22STCV25492    Hearing Date: October 15, 2024    Dept: 32

PLEASE NOTE:  Parties who intend to submit on this tentative must send an email to the court at sscdept32@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If the parties do not submit on the tentative, they should arrange to appear in-person or remotely.

TENTATIVE RULING

MOTION

Plaintiff Tara Rogachefsky (“Plaintiff”) filed a Complaint against Defendant Kate McCaslin (“Defendant”), and DOES 1 to 100, inclusive, alleging causes of action for (1) Negligence and (2) Negligence Per Se. Defendant McCaslin now moves for an order compelling Plaintiff to attend a deposition and monetary sanctions in the total sum of $1,170.00 for failure to appear and bringing this motion.

ANALYSIS

Under Code of Civil Procedure section 2025.010, any party may obtain discovery (subject to the scope and restrictions provided by law) “by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Code Civ. Proc., § 2025.010.)

“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).) 

“If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition. Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.” (Code Civ. Proc., § 2025.410, subd. (b).)

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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 sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)¿ 

Here, Defendant McCaslin asserts she served a Notice of Taking of Deposition on Plaintiff set for February 19, 2024 at 2:00 p.m. (Opfell Decl., ¶3, Ex. A.) However, Defendant asserts the February 19, 2024 deposition was taken off calendar per Plaintiff’s counsel’s request to attempt a settlement of the case. (Id. at ¶4, Ex. B.) After settlement attempts were unsuccessful, Defendant requested Plaintiff provide available dates for Plaintiff’s deposition, which were not provided. (Id. at ¶6.) As such, Defendant contends she served a Notice of Taking of Deposition on Plaintiff set for April 10, 2024 at 2:00 p.m. (Id., Ex. C.) Defendant contend Plaintiff’s counsel advised he was unavailable for the April 10^th date due to a trial he was participating in, thus Defendant served another notice setting the deposition for April 23, 2024. (Id. at ¶¶7-8, Exs. D-E.) Plaintiff’s counsel again advised the April 23^rd would not work and indicated he was booked until October or November, which led the parties to stipulate to a trial continuance from November 1, 2024 to February 3, 2025. (Id. at ¶9.) The final deposition was for August 2, 2024. (Id. at ¶10, Ex. F.)

Defendant asserts Plaintiff failed to appear for the deposition for any of the noticed dates and did not file objections to the notice. Plaintiff’s counsel failed to file a formal objection to the August 2, 2024 deposition date and only advised defense counsel of his unavailability the day before the noticed date. (Opfell Decl., ¶11.) No opposition has been filed. Accordingly, the Court grants the motion to compel.

Defendant seeks $410.00 in sanctions and attorneys’ fees associated with 1.0 hour preparing the instant motion and 2.0 hours for attending the hearing on the motion including travel time at an hourly rate of $175.00 plus the filing fee of $60.00. (Opfell Decl., ¶14.) The Court finds that sanctions are warranted but the amount is excessive in light of the nature of the motion, and because it is unopposed and counsel can appear remotely at any hearing. Accordingly, the Court awards monetary sanctions in the amount of $322.50 (1.5 hours of attorney time plus the filing fee).

CONCLUSION AND ORDER

Based on the foregoing, the Court grants Defendant Kate McCaslin’s Motion to Compel Deposition. Plaintiff shall appear for deposition within 20 days.

Plaintiff[1] is ordered to pay $322.50 in monetary sanctions to counsel for Defendant within 30 days of this order.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.