Judge Audra Mori, Case BC712590 2022-09-19 Tentative Ruling

Plaintiff Betty Sipho (“Plaintiff”) filed this action against defendants City of Los Angeles, County of Los Angeles, Los Angeles County Metropolitan Transportation Authority (“LACMTA”), and Doe Bus Driver for alleged injuries Plaintiff sustained when bus doors closed and stuck Plaintiff.

At this time, Plaintiff moves to compel LACMTA’s person most knowledgeable’ s (“PMK”) deposition and to compel LACMTA’s bus driver’s deposition. LACMTA opposes the motions, and Plaintiff filed a reply to the oppositions.

CCP § 2025.450(a) provides, “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.” CCP § 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under §2025.410.

Here, Plaintiff asserts that she has noticed LACMTA’s PMK’s and LACMTA’s bus driver’s depositions on multiple occasions, but Defendant has asserted meritless objections each time to Plaintiff’s notices. Plaintiff contends she has attempted to meet and confer, but to date, no dates for the depositions to go forward have been provided. Plaintiff argues that LACMTA’s refusal to proceed with the deposition and produce the requested documents is obstructing Plaintiff’s right to conduct discovery.

In opposition, LACMTA contends that Plaintiff failed to engage in good faith meet and confer efforts, and that Plaintiff has been unable to identify the name of a bus operator or a bus number for the bus where the incident allegedly occurred. LACMTA asserts that in response to Plaintiff’s government claim for damages, Plaintiff was served with an insufficiency of claim, but Plaintiff never presented an amended claim. LACMTA contends that Plaintiff has not identified the name of bus operator, or the number of the bus involved in the incident, so LACMTA cannot produce a PMK or bus operator because it does not have any information about the incident and it cannot locate the relevant bus driver.

In reply, Plaintiff argues that LACMTA has failed to conduct a reasonable inquiry into identifying its PMK or the bus operator involved in the incident. Plaintiff asserts she has provided all pertinent information regarding the bus involved in the incident, so it makes no sense that Defendant cannot produce a PMK to testify or locate the bus driver.

Plaintiff’s most recent deposition notice served on LACMTA requests that LACMTA produce its PMK/s on various topics, including the PMK as to bus operation policies in effect at the time of the incident, which Plaintiff seemingly indicates occurred sometime between 10:00 a.m. and 1:30 p.m. on March 7, 2018. (Mot. to Compel PMK Exh. G.) While LACMTA contends that Plaintiff provided contradictory information regarding the bus she boarded and time of the incident, the deposition seeks information concerning the date of the incident, and LACMTA provides no meaningful explanation as to why it cannot produce its PMK regarding the specific topics called for in the deposition notice. Plaintiff’s deposition notice describes with sufficient particularity the topics for which LACMTA is being requested to produce a PMK, and LACMTA does not establish any objections asserted in response to the notice are proper.

However, as to the production of documents request included in the deposition notice, Plaintiff does not set forth good cause for the production of any documents. (CCP § 2025.450(b)(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.”].) Plaintiff reasserts that LACMTA’s objections are meritless and state that the document requests are addressed in a separate statement filed with the motion, but no separate statement concerning the documents requested is attached to or filed with the motion. Plaintiff does not set forth any specific facts to show good cause for the requested documents.

Accordingly, Plaintiff’s motion to compel LACMTA’s PMK’s deposition is granted. LACMTA’s PMK is ordered to appear for deposition at a date, time, and location to be noticed by Plaintiff. Plaintiff must give at least fifteen (15) days’ notice of the deposition (notice extended per Code if by other than personal service). The motion is denied as to the request for production of documents.

CCP § 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. The Court awards two hours for preparing the motion and 0.5 hours for appearing at the hearing all at the reasonable rate of $200 per hour, for a total attorney fees award of $500. Further, Plaintiff is awarded the $60 motion filing fee as costs. Sanctions are sought and imposed LACMTA and LACMTA’s attorney of record, jointly and severally. They are ordered to pay sanctions to Plaintiff, by and through counsel of record, in the total amount of $560, within twenty days.

Plaintiff’s deposition notice for LACMTA’s bus driver’s deposition requests LACMTA produce the following person: “11:00 a.m…. [LACMTA] driver, who was operating the SUBJECT BUS at the time of the incident.” (Mot. to Compel Bus Driver Exh. A.) LACMTA provides evidence showing that at her deposition, Plaintiff testified that she got on a bus, Line 40, at Spring Street in Los Angeles approximately between 2:30 and 3:00 p.m., and that Plaintiff described the driver as an African American female between the age of 45 and 50. LACMTA avers it has attempted but failed to locate a driver because it is unable to identify a bus driver that matches the description given by Plaintiff. LACMTA attests that based on Plaintiff’s deposition testimony, LACMTA identified two buses as possibly being boarded by Plaintiff, but both were operated by male drivers.

Plaintiff, in reply, does not directly dispute these contentions made by LACMTA, nor does Plaintiff otherwise provide any information identifying the alleged bus driver. Given LACMTA’s evidence regarding Plaintiff’s unexplained contradictory testimony, the deposition notice does not sufficiently identify the bus driver to be deposed. (CCP § 2025.220(a)(3) [“If the name of the deponent is not known, the deposition notice shall set forth instead a general description sufficient to identify the person or particular class to which the person belongs.”].)

Based on the foregoing, Plaintiff’s motion to compel LACMTA’s unidentified bus driver’s deposition is denied.

CCP § 2023.030 permits the Court to impose monetary sanctions against any person that engages in the misuse of discovery, which includes unsuccessfully making a motion to compel. The Court finds sanctions are warranted against Plaintiff’s counsel for making the motion to compel LACMTA’s bus driver’s deposition. Defendant is awarded two hours for preparing the opposition and 0.5 hours for appearing at the hearing on this matter at the reasonable rate of $200 per hour, for a total attorney fees award of $500. Sanctions are imposed against Plaintiff’s attorney only; Plaintiff’s attorney is ordered to pay Defendant LACMTA, by and through its attorney of record, in the total amount of $500, within twenty days.

Hon. Audra Mori

Judge of the Superior Court