Judge: Frank M. Tavelman, Case: 23BBCV01601, Date: 2024-03-22 Tentative Ruling

Case Number: 23BBCV01601    Hearing Date: March 22, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL DEPOSITION

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ANALYSIS:

Michael Perkins (Plaintiff) brings this action against Southern California Regional Rail Authority aka Metrolink (Metrolink). Plaintiff alleges he was injured when the doors of a Metrolink train closed on him.

Metrolink brings a motion to compel Plaintiff’s deposition. Plaintiff has rendered no opposition to the motion.

“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, or to produce for inspection any document, electronically stored information, 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, electronically stored information, or tangible thing described in the deposition notice.” (C.C.P. § 2025.450(a).)

Here, Metrolink states that it noticed Plaintiff’s deposition on six separate occasions and Plaintiff has failed to appear each time. (Krutcik Decl. Exhs. A-F.) Plaintiff’s first deposition was noticed for December 28, 2023, with subsequent dates for January 11, 2024, January 25, 2024, January 31, 2024, February 7, 2024, and February 13, 2024. Metrolink states that after the initial December 28 non-appearance, they negotiated with Plaintiff’s counsel for the new date of January 11. (Mot. p. 2.) After several more non-appearances, Metrolink noticed the deposition for February 7, 2024. (Krutcik Decl. Exh. B.) On February 7 Plaintiff’s counsel appeared, but Plaintiff did not as the result of technical difficulties. (Krutcik Decl. Exh. D.) Metrolink’s counsel and Plaintiff’s counsel agreed to re-notice the deposition for February 13. (Id.) Neither Plaintiff nor his counsel appeared at the February 13 hearing. (Krutcik Decl. Exh. F.)

Metrolink demonstrates that Plaintiff failed to proceed with the duly noticed deposition despite multiple attempts to meet and confer with Plaintiff’s counsel regarding the nonappearances. (C.C.P. § 2024.450(a), (b)(2).) Accordingly, Metrolink’s unopposed motion to compel the deposition of Plaintiff is GRANTED.

If a motion to compel deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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. (C.C.P. § 2025.450(g)(1).)

Defendant’s counsel estimates their office 19 hours to be spent in attempting to conduct Plaintiff’s deposition and preparing this motion at the hourly rate of $300. While the Court understands Metrolink’s frustration at Plaintiff’s repeated nonappearance, the Court finds that two hours for each deposition is an appropriate sanction, which is 12 hours (2 hours x 6 missed depositions). Additionally, the estimated time in reviewing the opposition and preparing a reply is inapplicable as the motion is unopposed. Accordingly, the Court awards sanctions in the amount of $3,600. Sanctions are awarded jointly and severally against Plaintiff and Plaintiff’s counsel.  The Court will order Plaintiff’s deposition within the next 30 days unless another date is expressly agreed to in writing by Defendant’s counsel.  

The Court also advises that a violation of the Court’s order will result in an Order to Show Cause Re Evidentiary Sanctions, up to and including precluding Plaintiff from testifying at trial or having a declaration considered at any motion for summary judgment.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Southern California Regional Rail Authority aka Metrolink’s Motion to Compel the Deposition of Michael Perkins came on regularly for hearing on March 22, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL THE DEPOSITION OF PLAINTIFF MICHAEL PERKINS IS GRANTED.

SANCTIONS ARE AWARDED IN THE AMOUNT OF $3,600 AS AGAINST PLAINTIFF AND HIS COUNSEL, JOINTLY AND SEVERALLY.  PAYMENT OF SANCTIONS IS DUE WITHIN 30 DAYS.

UNLESS ALL PARTIES WAIVE NOTICE, METROLINK TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  March 22, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles