Judge: Cherol J. Nellon, Case: 21STCV19946, Date: 2023-05-22 Tentative Ruling

Case Number: 21STCV19946    Hearing Date: May 22, 2023    Dept: 28

Motion to Compel Deposition

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On May 26, 2021, Plaintiff Lenard Keaton (“Plaintiff”) filed a complaint against Defendant Food 4 Less GM, Inc. (“Defendant”). Plaintiff alleges negligence in the complaint arising from a slip and fall accident that occurred on Defendant’s premises on May 27, 2019.

On March 28, 2023, Defendant filed a motion to compel Plaintiff’s deposition pursuant to California Code of Civil Procedure section 2025.450. The Court continued the hearing on the motion to May 22, 2023.

Trial is set for January 17, 2024.

PARTY’S REQUESTS

Defendant asks the Court to compel Plaintiff’s deposition within twenty days of this ruling because Plaintiff has not been cooperative in having his deposition taken.

Defendant also asks the Court to impose $1,085.00 in monetary sanctions against Plaintiff and Plaintiff’s counsel of record, Law Offices of D. Hess Panah & Associates, for their abuse of the discovery process.

No opposition has been filed.

LEGAL STANDARD

California Code of Civil Procedure section 2025.450, subdivision (a) provides: “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.”

California Code of Civil Procedure section 2025.450, subdivision (b) provides: “A motion under subdivision (a) 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.”

California Code of Civil Procedure section 2025.450, subdivision (c) provides: “(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . 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.”

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or

any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct . . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).)

California Rules of Court, rule 3.1348, subdivision (a) states: “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

DISCUSSION

On December 28, 2022, Defendant served a notice of taking Plaintiff’s deposition and set the deposition for January 19, 2023. (Feffer Decl., ¶ 5, Ex. A.) On December 30, 2022, Plaintiff’s counsel advised that Plaintiff was unavailable on that date and mentioned that Plaintiff had availability in February/March. (Feffer Decl., ¶ 6, Ex. B.)

On January 15, 2023, Defendant sent Plaintiff nine possible dates for deposition in the beginning of February. (Feffer Decl., ¶ 7, Ex. B.) Plaintiff’s counsel responded that none of the proposed dates were available and that the deposition could not go forward until April. (Feffer Decl., ¶ 8, Ex. B.) On January 16, 2023, Defense counsel sent an email agreeing to proceed with the deposition of Plaintiff in April only if it was conditioned upon a reciprocal agreement that Defendant need not respond to any discovery served by Plaintiff any sooner than two weeks after Plaintiff’s deposition. (Feffer Decl., ¶ 9, Ex. B.) As of the filing of this motion, Plaintiff has not responded. (Feffer Decl., ¶ 10.)

The Court finds that the motion is properly granted. Defendant properly noticed the initial deposition, and Plaintiff cancelled this deposition. Plaintiff then continued to request later dates for the deposition, and then failed to respond with available dates in April. Repeating delays will only delay trial. As such, the Court finds the requested deposition attendance is properly compelled. Sanctions are properly imposed against Plaintiff and Plaintiff’s counsel of record, for their abuse of the discovery process.

Defendant requests $1,025.00 in monetary sanctions for 5.0 hours (2.5 preparing this Motion, 2.5 spent on Reply and the hearing) at a rate of $205 per hour, plus a $60 filing fee. However, as no opposition was filed, the Court reduces the amount and awards $675.00 (3 hours at a rate of $205/hour, plus a $60 filing fee).

CONCLUSION

The motion is GRANTED.

Plaintiff is ordered to appear for deposition within twenty days of this ruling.

Plaintiff and counsel, Law Offices of D. Hess Panah & Associates are ordered to pay Defendant $675.00, jointly and severally, within thirty days of this ruling.

Defendant is ordered to give notice of this ruling.

Defendant is ordered to file a proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.