Judge: Daniel M. Crowley, Case: 19STCV38789, Date: 2023-01-18 Tentative Ruling

Case Number: 19STCV38789    Hearing Date: January 18, 2023    Dept: 28

Defendant Mia Corvino’s Motion to Compel Deposition of Plaintiff Emily McGahee

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

BACKGROUND

On October 30, 2019, Plaintiff Emily McGahee (“Plaintiff”) filed this action against Defendant Mia Corvino (“Defendant”) for negligence.

On June 23, 2021, Defendant filed an answer.

On October 26, 2022, Defendant filed a Motion to Compel Plaintiff’s Deposition to be heard on January 18, 2023.

Trial is currently scheduled for September 11, 2023.

PARTY’S REQUESTS

Defendant requests the Court order Plaintiff to appear for a video deposition on January 27, 2022, at 10:00 a.m. Defendant also requests the Court impose sanctions totaling $800.46 to be paid within 20 days of the hearing on the motion.

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 originally noticed Plaintiff’s deposition for September 6, 2021; the deposition was continued to December 1, 20221, to give Plaintiff time to respond to discovery. Plaintiff requested the deposition be rescheduled, to which Defendant complied. The deposition was taken off calendar due to scheduling conflicts, but Defendant offered to reschedule for a video deposition the week of October 24, 2022. Plaintiff refused, stating that counsel was not available until after the then-current trial date of December 6, 2022. Defendant has diligently attempted to take Plaintiffs’ depositions for over a year—the Court finds good cause and grants the motion.

Defendant is entitled to sanctions due to Plaintiff’s failure to appear for or provide reasonable dates for her depositions. Defendant requests sanctions totaling $800.43 from Plaintiff, based upon 2.75 hours of attorney’s work, at a rate of $160.17 per hour, 1 $60.00 filling fee and 1 $300.00 cancelation fee. Attorney’s work is based upon 1 hour drafting the motion, .75 hours replying to any opposition and 1 hour appearing for the hearing on the motion. As the motion is unopposed, the Court awards sanctions based on 2 hours of attorney’s work. The Court awards sanctions totaling $680.34 on Plaintiff.

CONCLUSION

Defendant Mia Corvino’s Motion to Compel Deposition of Plaintiff Emily McGahee is GRANTED. Plaintiff is ordered to appear for a video deposition on January 27, 2022, at 10:00 a.m.

Defendant Mia Corvino’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay Defendant $680.34 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.

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