Judge: Anne Hwang, Case: 23STCV15983, Date: 2024-07-29 Tentative Ruling

Case Number: 23STCV15983    Hearing Date: July 29, 2024    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

            Defendant Harry Connick, Jr. (“Defendant”) moves to compel Plaintiff Myrika Hairston’s (“Plaintiff”) deposition. Defendant also seeks monetary sanctions. Plaintiff’s counsel has filed a declaration in opposition. No reply has been filed.  

LEGAL STANDARD

“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, or to produce for inspection any document . . . 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 . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)  

“A motion under subdivision (a) [above] shall comply with both of the following:  

1. The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.  

2. The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  

(Code Civ. Proc., § 2025.450, subd. (b).)  

If a motion is granted, the court shall impose a monetary sanction in favor of that party unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the sanction unjust. (Code Civ. Proc. § 2025.450 (g).) 

MEET AND CONFER

The Declaration of Christina Y. Morovati, Defendant’s counsel, shows that counsel for the parties communicated following the non-appearance at the deposition. (Morovati Decl. ¶ 8-9.) Therefore, the meet and confer requirement has been met.

DISCUSSION

This case arises out of a motor vehicle accident. On April 11, 2024, Defendant served a notice of deposition on Plaintiff, set for the mutually agreeable date of May 16, 2024. (Morovati Decl. ¶ 4-5, Exh. C.) On May 14, 2024, Defendant’s counsel informed Plaintiff that there was a conflict on the date set and Plaintiff agreed to reschedule the deposition for May 17, 2024. Accordingly, Defendant served a notice of continuation. (Id. ¶ 6, Exh. D.) On May 17, 2024, approximately fifteen minutes before the deposition was set to start, Plaintiff’s counsel informed Defendant that Plaintiff was unavailable. As a result, Defendant obtained a Certificate of Non-Appearance. (Id., Exh. G.) Defendant asserts that Plaintiff has failed to provide alternative dates for a deposition.

In opposition, Plaintiff’s counsel declares that other dates were provided to Defendant, but Defendant did not respond. He further declares: “Concerning the 17th of May Deposition Date my client's unavailability only became aware by me that Monday. The last minute deposition change from the 16th of May to the 17th May at the request of Defendant's attorney created issues which only became apparent the morning of the deposition.” (Yeager Decl. ¶ 3.) The email correspondence attached to the opposition shows that after filing this motion, Plaintiff requested alternative dates for the deposition. On June 26, 2024, Defendant’s counsel responded with three dates: July 10^th, 15^th, or 17^th. (Id.) The next day, Plaintiff’s counsel emailed that July 17^th, 2024 worked, but it appears no deposition notice was sent.

Therefore, because Plaintiff did not appear for the deposition on May 17, 2024, the motion to compel Plaintiff’s deposition is granted.

Defendant seeks $2,248.90 in monetary sanctions against Plaintiff and Plaintiff’s counsel, representing a $225 hourly rate, the $60 filing fee, and $388.90 for the court reporter cancellation fee. However, because it appears Plaintiff attempted to reschedule the deposition, and because of the last minute change in date, the Court finds that sanctions for the amount requested would be unjust. Therefore, the Court awards sanctions in the reduced amount of $388.90 for the court reporter fee only.

CONCLUSION AND ORDER

Accordingly, Defendant’s motion to Compel Plaintiff’s Deposition is GRANTED. Plaintiff Myrika Hairston shall appear for a remote deposition on August 1, 2024 at 11:00 a.m., unless the parties stipulate otherwise.

Plaintiff and her counsel of record, jointly and severally, are ordered to pay $388.90 in monetary sanctions to counsel for Defendant within 30 days.

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