Judge: Daniel M. Crowley, Case: 19STCV10814, Date: 2023-02-17 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org.  Include the word "SUBMITS" in all caps and the Case Number in the Subject line.  In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

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Case Number: 19STCV10814    Hearing Date: February 17, 2023    Dept: 28

Case Number: 19STCV10814   Hearing Date: February 9, 2023     Dept: 28

Defendant Cedars-Sinai Medical Center’s Motion to Compel Deposition of Plaintiff Barbara Russo

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On March 29, 2019, Plaintiff Barbara Russo (“Plaintiff”) filed this action against Defendant Cedars-Sinai Medical Center (“Defendant”) for assault, battery and intentional infliction of emotional distress.

On May 16, 2019, Defendant filed an answer.

On January 13, 2023, Defendant filed a Motion to Compel Plaintiff’s Deposition to be heard on February 9, 2023.

Trial is currently scheduled for May 17, 2023.

PARTY’S REQUESTS

Defendant requests the Court compel Plaintiff to appear for the second session of her deposition. Defendant also requests $1,806.25.

LEGAL STANDARD

Code of Civil Procedure § 2025.450 allows the Court to compel a party’s appearance and to produce documents. 

“If, after service of a deposition notice, a party to the action… without having served a valid objection… fails to appear for examination, or to proceed with it, or to produce for inspection any document 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 or tangible thing described in the deposition notice.”  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 or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP § 2025.450 provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition 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.

Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.

DISCUSSION

Defendant completed the first volume of Plaintiff’s deposition session on October 7, 2021. The deposition ended prematurely at Plaintiff’s request. Defendant attempted to take Plaintiff’s second deposition in early 2022 but was unable to due to Plaintiff’s illness. Defendant has never received documentation of said illness. Since then, Defendant has noticed Plaintiff’s deposition three separate times. Plaintiff failed to object or provide notice of her non-appearance for the last of these three depositions, resulting in the taking of a certificate of non-appearance. In January 2023, Plaintiff’s counsel indicated he would provide dates for his client’s deposition but failed to do so prior to filing the motion.

Defendant has made diligent attempts to finish Plaintiff’s deposition for over a year. Plaintiff has failed to appear for or provide alternative dates for her deposition. The Court finds good cause and grants the motion.

Under CCP § 2025.450, sanctions are mandatory when granting a motion to compel a party’s deposition. Defendant requests $1,806.25 in sanctions, based upon 6 hours of attorney’s work at a rate of $250.00 per hour, 1 $246.25 fee for the Court reporter for the missed deposition and 1 $60.00 filing fee. Attorney’s work is based on 4 hours drafting and 2 hours appearing for the hearing. The Court awards $1,056.25 in sanctions, based upon 3 hours of attorney’s work and the other requested fees.

CONCLUSION

Defendant Cedars-Sinai Medical Center’s Motion to Compel Deposition of Plaintiff Barbara Russo is GRANTED. Plaintiff is ordered to appear for a deposition within 30 days of the hearing on the motion.

Defendant Cedars-Sinai Medical Center’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay Defendant $1,056.25 in sanctions within 30 days of the hearing on the motion.

Moving party is ordered to give notice of this ruling.

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