Judge Douglas W. Stern, Case 21STCV34171 2023-05-18 Tentative Ruling

Paula Munoz vs. Overland Veterinary Clinic, et al., 21STCV34171

Motion for Order to Compel Deposition of Kyana Gomez

Moving Party: Defendant Overland Veterinary Clinic

This case arises out of Plaintiff Paula Munoz’s employment with Defendant Overland Veterinary Clinic (“Overland”) and the alleged conduct of Defendant Michael Moraskie. Kyana Gomez is a third-party believed by Overland to have knowledge of the events alleged in Plaintiff’s complaint because Gomez worked at Overland during the relevant time period. On February 27, 2023, Overland received confirmation that Gomez was served by hand delivering a copy of the deposition and subpoena on February 26, 2023. (Bertikian Decl. ¶ 4, Ex. C.) The deposition was scheduled to take place via Zoom on March 6, 2023. (Bertikian Decl. ¶ 2, Ex. A.) Gomez did not appear, and Overland’s attempts to get in contact with her failed. (Bertikian Decl. ¶ 6.) Defendant then filed this motion for an order compelling Gomez’s attendance at deposition within 30 days.

Overland is also requesting $2,012.50 in sanctions against Gomez: (1) 4.5 hours for one attorney to review case law, all relevant documents and correspondence, and preparing the motion at $225.00 an hour; and (2) 4 hours for another attorney to review case law and documents and revise the motion at $250.00 an hour. (Bertikian Decl. ¶ 7.)

Code of Civil Procedure § 2020.220 provides in relevant part that the Court has jurisdiction over a witness served with a subpoena who refuses to appear: “(c) Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service:… (3) The deponent’s attendance at a court session to consider any issue arising out of the deponent’s refusal to be sworn, or to answer any question, or to produce specified items, or to permit inspection or photocopying, if the subpoena so specifies, or specified testing and sampling of the items produced.”

Code of Civil Procedure § 2025.480(a) provides in relevant part: “If a deponent fails to answer any question …, the party seeking discovery may move the court for an order compelling that answer…”

In this case, Overland wants to compel Gomez’s attendance at deposition because she may have relevant information to Plaintiff’s allegations because she was an employee of Overland. She was properly served with a deposition subpoena, but she did not appear for her scheduled deposition. This Court has jurisdiction over Gomez pursuant to CCP § 2020.220, and Overland has properly moved for an order compelling her attendance at deposition.

CCP Section 2023.010 holds that “failing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery” are grounds for discovery sanctions. Further, Section 1987.2 provides that the Court may “in its discretion award the amount of the reasonable expenses incurred in making or opposing” a discovery motion “including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification[.]”

California courts have repeatedly held that monetary sanctions are available against nonparties who “flout the discovery process.” (Temple Cmty. Hosp. v. Superior Ct. (1999) 20 Cal.4th 464, 476; see also Sears, Roebuck & Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350.)

Overland has requested $2,012.50 in sanctions against Gomez: (1) 4.5 hours for one attorney to review case law, all relevant documents and correspondence, and preparing the motion at $225.00 an hour; and (2) 4 hours for another attorney to review case law and documents and revise the motion at $250.00 an hour. (Bertikian Decl. ¶ 7.) This amount appears excessive The Court shall award a total of $750 as sanctions and costs of motion.

1. Defendant Overland’s motion to compel deposition of Kyana Gomez is GRANTED.

2. Kyana Gomez is ordered to appear for deposition within 30 days of service of this order.

3. Kyana Gomez is also ordered to pay $750.00 in sanctions within 45 days due to her nonappearance at the original deposition date.