Judge: David A. Hoffer, Case: 30-20-01152792, Date: 2022-07-25 Tentative Ruling

The motion by plaintiff David Erb (“plaintiff”) for an order imposing monetary sanctions under CCP §2025.430 against defendant Jacob R. Evans (“defendant”) is DENIED.

Plaintiff moves for monetary sanctions against defendant only, not defense counsel, on the grounds that plaintiff and his counsel appeared for plaintiff’s deposition at the time and on the date noticed by defendant, but defense counsel did not show up to take plaintiff’s deposition.

Plaintiff’s counsel does not declare that he confirmed the deposition with defense counsel before preparing his client and traveling to defense counsel’s office. It is asserted in the motion that plaintiff’s counsel received a voicemail the night before the deposition asking for documents only (which had already been produced) and not addressing confirmation of the deposition. However, plaintiff’s counsel does not attest to these facts in his declaration.

Defense counsel admits that he unilaterally canceled the deposition (Tredway Decl. ¶6), but does not declare that he notified the plaintiff’s counsel of that cancellation.

CCP §2025.430 mandates the court impose a monetary sanction against the noticing party who fails to attend or proceed with the deposition, unless it finds the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Here, counsel for the parties were two ships passing in the night. Both should have made a greater effort to communicate with each other regarding the deposition.

As the failing was exclusively an error of counsel, under the circumstances imposition of sanctions against the defendant only would be unjust..

Plaintiff is ordered to give notice of this ruling.