Judge: Curtis A. Kin, Case: 22STCV04410, Date: 2023-02-21 Tentative Ruling

Case Number: 22STCV04410    Hearing Date: February 21, 2023    Dept: 72

MOTION TO COMPEL DEPOSITION AND PRODUCTION OF DOCUMENTS

Date:               2/21/23 (8:30 AM)

Case:                           Orethea Flowers v. Ronald Reagan UCLA Med. Ctr., et al. (22STCV04410)

TENTATIVE RULING:

Defendant The Regents of the University of California move to compel the deposition of plaintiff Orethea Flowers.

“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…the party giving the notice may move for an order compelling the deponent’s attendance and testimony….” (CCP § 2025.450(a).)

Defendant served a notice to take the deposition of plaintiff on September 8, 2022. (Newell Decl. ¶ 2 & Ex. 1.) Plaintiff objected based on lack of availability. (Newell Decl. ¶ 3 & Ex. 2.) Defendant followed up regarding the lack of availability. Counsel stated that plaintiff would be available during the final two weeks of October 2022. (Newell Decl. ¶ 4 & Ex. 3.) Counsel thereafter requested continuance of the deposition to specified dates in January 2023. (Newell Decl. ¶ 5 & Ex. 4.) Counsel then stated that plaintiff would not be available until May 1 or May 2, 2023. (Newell Decl. ¶ 6 & Ex. 5.)

Defendant maintains that plaintiff repeatedly failed to appear for her deposition. (Newell Decl. ¶ 7.) According to defendant, plaintiff has not justified why she cannot appear before May 1 or May 2, 2023. (Newell Decl. ¶ 7.) Under these circumstances, defendant demonstrates that plaintiff failed to proceed with her duly noticed deposition and that defendant contacted plaintiff to inquire about the nonappearance, as required by CCP § 2025.450(b).

Plaintiff maintains that she is not refusing to appear for deposition. However, plaintiff’s delay until May 2023 to appear for deposition is unreasonable and tantamount to refusing to appear, especially considering that defendant noticed the deposition for September 8, 2022. Defendant is not required to wait eight months to take the deposition of a party.

Defendant also moves to compel compliance with Request for Production of Documents Nos. 1-6, 8, 11-25, and 27-60. ((Newell Decl. ¶ 10.)   “If a party filing a response to a demand for inspection, copying, testing, or sampling…thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (CCP § 2031.320(a).) Despite asserting objections, plaintiff stated for each of the subject requests that she would produce “all relevant documents within her possession, custody, or control.” (Newell Decl. ¶ 10.) Plaintiff did not address the document requests in the opposition.

For the foregoing reasons, the motion is GRANTED. Plaintiff Orethea Flowers is ordered to appear for deposition via videoconferencing software on ___________________ at _________. Within fifteen (15) days hereof, plaintiff shall comply with Request for Production of Documents Nos. 1-6, 8, 11-25, and 27-60 by serving responsive documents thereto.

For failing to appear for deposition without substantial justification, thereby forcing defendant to file this motion, the Court imposes a monetary sanction against plaintiff Orethea Flowers and counsel of record, jointly and severally, in the amount of $1,166.65. Defendant did not set forth the number of hours that each attorney and paralegal spent preparing the motion. (Cf. Newell Decl. ¶ 12; see generally Newell Reply Decl.) Accordingly, the amount of sanctions is based on 5 hours at an hourly rate of $233.33, the average of the asserted $300.00, $275.00, and $125.00 hourly rates. (Newell Reply Decl. ¶¶ 6-8.) Monetary sanctions shall be paid to counsel for defendant within thirty (30) days hereof.