Judge: Christopher K. Lui, Case: 22STCV15220, Date: 2023-09-21 Tentative Ruling

Case Number: 22STCV15220    Hearing Date: September 21, 2023    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

            Plaintiff alleges that she was terminated due to her race, her perceived disability, and for violating policies that were never articulated to Plaintiff.

Defendant Southern California Permanente Medical Group moves to compel the deposition of Plaintiff and requests the imposition of sanctions.

TENTATIVE RULING

Defendant Southern California Permanente Medical Group’s motion to compel Plaintiff’s deposition is GRANTED. The deposition is to occur within 10 days.

Defendant’s request for sanctions against Plaintiff and her counsel is GRANTED in the reduced amount of $1,584.15, jointly and severally. Sanctions are to be paid to Defendant’s counsel within 10 days.

ANALYSIS

Motions To Compel  Deposition

Discussion

Defendant Southern California Permanente Medical Group moves to compel the deposition of Plaintiff. 

            The Court exercises its discretion to consider the untimely opposition.

CCP § 2025.450 provides in pertinent part as follows:

(a) 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 proceed with it, . . . the party giving the notice may move for an order compelling the deponent’s attendance and testimony, . . .

(b) 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.

. . .

(g)

(1) 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.

. . .

(h) If that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent’s testimony would be taken pursuant to that order. 

. . .

     (Civ. Proc. Code, § 2025.450.)

            Civ. Proc. Code, § 2025.280(a) provides:

(a) The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.

(Civ. Proc. Code, § 2025.280(a)[bold emphasis added].)

Defendant is entitled to an order compelling Plaintiff to appear for her deposition. Plaintiff has twice cancelled the continued session of her noticed deposition the day before. (Declaration of  Bethany A. Vasquez, ¶¶ 13, 18.) Defendant’s counsel requested alternative dates, but Plaintiff’s counsel never provided such. (Vasquez Decl.,  ¶¶ 14, 15.) Defendant’s counsel inquired about the non-appearance. (Vasquez Decl., ¶¶ 19, 20.)  Plaintiff characterizes this as Defendant agreeing to voluntarily take the deposition off-calendar and, Defendant could have left the deposition on calendar. While Defendant’s counsel could have done this, there is no obligation to incur the costs of obtaining a certificate of non-appearance.

Plaintiff’s counsel takes the position that he has no obligation to schedule his own client’s deposition and Defendant’s counsel should simply set a deposition date and not cancel it if Plaintiff’s counsel cannot attend. However, if Plaintiff’s counsel is not going to make any effort to provide alternative dates for his client to be deposed upon request by Defendant's counsel, Defendant is entitled to an order compelling Plaintiff’s deposition.

The motion to compel Plaintiff’s deposition is GRANTED. The deposition is to occur within 10 days. 

Defendant’s request for sanctions against Plaintiff and her counsel is GRANTED in the reduced amount of $1,584.15, jointly and severally (3.5 hours at $435/hour plus $61.65 in filing fees.) Sanctions are to be paid to Defendant’s counsel within 10 days.