Judge: Craig D. Karlan, Case: 21SMCV01418, Date: 2022-09-15 Tentative Ruling

Case Number: 21SMCV01418    Hearing Date: September 15, 2022    Dept: N

TENTATIVE ORDER

Defendant 1227 Formosa, LLC’s Motion to Compel Attendance of Plaintiff Roxanne McBryde at Deposition [and] Production of Documents is DENIED, as MOOT.

Defendant 1227 Formosa, LLC’s Request for Sanctions Against Plaintiff Roxanne McBryde and Her Counsel of Record Gregory M. Bordo and Nicole Wentworth of Blank Rome LLP in the Amount of $4,288.00 is DENIED.

Defendant 1227 Formosa, LLC to give notice.

REASONING

“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, 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).)

Defendant 1227 Formosa, LLC (“Defendant”) moved the Court for an order compelling Plaintiff Roxanne McBryde (“Plaintiff”) to appear and testify for her deposition, as well as produce items that were requested in the deposition notice. Defendant represented that Plaintiff failed to appear for properly noticed depositions on two occasions without sufficient justification. On September 8, 2022, Defendant filed a supplemental reply to its motion, stating therein that Plaintiff had appeared for her deposition on August 31, 2022, after Defendant had noticed Plaintiff’s deposition four separate times, which caused Defendant to incur fees and costs totaling $4,288.00 due to her failure to appear and for filing the present motion. Accordingly, Defendant 1227 Formosa, LLC’s Motion to Compel Attendance of Plaintiff Roxanne McBryde at Deposition [and] Production of Documents is DENIED as MOOT, as to the merits of the motion.

“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.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Defendant states it remains entitled to sanctions in the amount of $4,228.00 because it was required to incur such fees and costs and had to file a motion before Plaintiff would appear for her deposition. However, Plaintiff represents in her opposition to the motion that she suffered from medical issues related to orthopedic surgery, an infection following surgery, another surgery to remove a brain tumor, and a complete loss of hearing from the removal of a brain tumor. Plaintiff provides medical documentation showing she suffered from these ailments, and Defendant and defense counsel were aware of these issues preventing Plaintiff from appearing for deposition. (Opp’n, Bordo Decl. ¶¶ 7-14, 19-25, Exs. 1-6.) Further, Plaintiff responded to written discovery and agreed to participate in mediation during this time so as to continue participating in this action to the extent she could. (Ibid.)

The Court finds that monetary sanctions are not warranted, as Plaintiff acted with substantial justification in failing to appear for her deposition. Thus, Defendant 1227 Formosa, LLC’s Request for Sanctions Against Plaintiff Roxanne McBryde and Her Counsel of Record Gregory M. Bordo and Nicole Wentworth of Blank Rome LLP in the Amount of $4,288.00 is DENIED.