Judge Holly J. Fujie, Case 20STCV46212 2023-01-06 Tentative Ruling

MOVING PARTY: Defendant Frank D. Lanterman Regional Center (“Moving Defendant”)

This action arises out of the lease of an employment relationship. On December 13, 2022, Moving Defendant filed a motion to compel Plaintiff’s deposition (the “Motion”).

Under California Code of Civil Procedure (“CCP”) section 2025.450, where a deponent fails to attend a deposition and produce documents, an opposing party can ask the court to order the deponent’s attendance and testimony at a deposition, as well the production of the documents specified in the deposition notice. The motion must include: (1) facts showing good cause justifying the production of documents; and (2) where a deponent fails to attend the deposition and produce the documents, a declaration must accompany the motion indicating that the party seeking the order to compel contacted the deponent to inquire about the deponent’s nonappearance. (CCP § 2025.450, subd. (b)(1)-(2).)

Moving Defendant served deposition notices to Plaintiff in July 2021 and November 2021. (Declaration of Timothy M. Keegan (“Keegan Decl.”) ¶ 3.) Neither of these depositions occurred. (Id.) After Plaintiff acquired new counsel in January 2022, Moving Defendant attempted to coordinate a date to proceed with Plaintiff’s deposition. (See Keegan Decl. ¶¶ 4-5.) On April 19, 2022, Plaintiff’s counsel indicated that Plaintiff would not proceed with her deposition unless she received certain documents from Moving Defendant. (Keegan Decl. ¶ 6.) That day, counsel agreed to enter into a stipulated protective order so that Moving Defendant could produce the documents. (Keegan Decl. ¶ 8.) In June 2022, Plaintiff stated that she would not sign the protective order because she did not trust information coming from Moving Defendant. (Keegan Decl. ¶ 10.) In July 2022, Moving Defendant’s counsel attempted to coordinate a deposition but did not receive a response from Plaintiff. (See Keegan Decl. ¶¶ 11-12.) Moving Defendant thereafter served a deposition notice on September 1, 2022 for a deposition on September 26, 2022. (Keegan Decl. ¶ 12.) Plaintiff did not serve any objections to this deposition notice. (Keegan Decl. ¶ 13.) On September 25, 2022, Moving Defendant’s counsel contacted Plaintiff’s counsel to confirm that the deposition would proceed; Plaintiff’s counsel stated that he would appear for the deposition but believed that Plaintiff would refuse to appear. (See Keegan Decl. ¶¶ 14-15.)

Although Plaintiff’s counsel appeared at the deposition on September 26, 2022, Plaintiff did not appear and her non-appearance was taken. (Keegan Decl. ¶ 16.) After September 26, 2022, Plaintiff’s counsel informed Moving Defendant that he was unable to secure Plaintiff’s commitment to appear for a deposition. (Keegan Decl. ¶ 17.)[2]

In the Opposition, Plaintiff confirms the facts presented in the Motion. (See Declaration of Dennis L. Kennelly (“Kennelly Decl.”) ¶ 2.) Plaintiff argues, however, that the Motion should be continued pending the resolution of Kennelly’s motion to be relieved as counsel so that Plaintiff’s new counsel may work with Moving Defendant to coordinate her deposition. The Court observes, however, that there is currently no pending motion to be relieved.[3] Nor has a substitution of attorney been filed. The Opposition does not present a timeline for the resolution of Plaintiff’s issues with her current representation or her retention of new counsel. Nor does the Opposition raise arguments or present facts that justify or excuse Plaintiff’s failure to appear at her deposition. The Court finds that Moving Defendant has set forth sufficient uncontested facts to support compelling Plaintiff’s deposition. The Court therefore GRANTS the Motion. Plaintiff is ORDERED to appear at her deposition, which is to occur within 30 days of this order as noticed by Moving Defendant. At the time of the hearing, the Court requests that Plaintiff provide information regarding the status of her representation.

Moving Defendant requests $2,816 in attorney’s fees. This amount represents: (1) six hours preparing the moving papers; (2) an anticipated two hours preparing the reply papers; and (3) $816.50 in court reporter fees incurred at the September 26, 2022 deposition that Plaintiff failed to attend. Moving Defendant’s counsel’s hourly rate is $250 per hour.

The Court exercises its discretion and GRANTS Moving Defendant attorney’s fees in the reasonable amount of $1,816.50, which represents four hours of work on the Motion and $816.50 in fees associated with Plaintiff’s unattended September 26, 2022 deposition. (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.)

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] Plaintiff’s opposition (the “Opposition”) is not on file in the Court’s records. The Court has, however, received and reviewed a courtesy copy of the Opposition.

[2] Plaintiff’s counsel of record, Dennis Kennelly (“Kennelly”) previously attempted to be relieved as counsel. His motion to be relieved was opposed by Plaintiff. On November 30, 2022, the Court denied Kennelly’s motion to be relieved as Plaintiff’s counsel without prejudice due to Kennelly’s failure to comply with notice requirements. As of the date of this hearing, Kennelly has not filed a renewed motion to be relieved as counsel.

[3] The Kennelly Declaration provides that Kennelly plans to file a renewed motion to be relieved as Plaintiff’s counsel “shortly.” (Kennelly Decl. ¶ 3.)