Department 30, Spring Street Courthouse

July 28, 2022

20STCV33540

Motion to Compel Deposition of Plaintiff Kyle Fragnoli filed by Defendants The Buffalo Club and Brayner Alberto Ferry (unopposed)

The motion is granted.

Plaintiff is ordered to appear for deposition within the next 20 days as noticed by Defendants.

Sanctions in the amount $1,367.50 are imposed on Plaintiff. Sanctions are due within 20 days after the date of this order.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.  

On September 02, 2020, Plaintiff Kyle Fragnoli filed his complaint alleging causes of action for assault, battery, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, and premises liability.

On April 29, 2022, Defendants The Buffalo Club, Limited Partnership, Brayner Alberto Ferry, and Does 1 to 100 filed this motion to compel deposition of Plaintiff Kyle Fragnoli.

 

 

Defendants argue that Plaintiff’s deposition was agreed upon and noticed to take place on March 22, 2022. Although Plaintiff’s counsel appeared for the deposition, Plaintiff failed to appear. Plaintiff’s counsel attempted to contact Plaintiff to no avail. The parties’ counsel met and conferred on March 22, 25, and 31, 2022 regarding another deposition date. Defendants have not received new dates for the deposition. Defendants allege they will be severely prejudiced if they cannot depose Plaintiff in a timely manner. 

Defendants also seek sanctions against Plaintiff Fragnoli in the amount of $2042.50 for costs and expenses incurred as a result of his failure to appear.

 

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A party desiring to take an oral deposition shall give a notice in writing which specifies with reasonably particularity any materials to be produced by the deponent. (Code Civ. Proc., § 2025.220, subd. (a)(4).) A properly served deposition notice is effective to require a party to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) 

“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 produce for inspection any document, … 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 … described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)  

A motion brought to compel a deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).) 

Sanctions may be imposed for misuse of discovery process. (Code Civ. Proc., § 2023.030, subd. (a). ) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) 

Defendants are entitled to an order compelling Fragnoli’s attendance at deposition. Fragnoli was required to appear for his deposition and failed to do so. (Milligan Decl., ¶2-5) Attempts to meet and confer have not been successful. (Motion, Exhibit E) Plaintiff has not opposed this motion or offered any explanation for his failure to appear at the deposition despite his own counsel’s attempts to contact him and attempts to meet and confer. (Milligan Decl., ¶¶ 5-6) Defendants are entitled to conduct the deposition of Plaintiff in order to obtain necessary testimony prior to the trial date. Accordingly, Defendants’ motion is granted.

With respect to sanctions, the Court finds that Plaintiff has misused the discovery process by failing to appear for a properly noticed deposition. 

Defendants’ calculation of sanctions is supported by the Declaration of Defendants’ Counsel, Karen T. Milligan. The Declaration states that she spent three hours drafting the instant motion, declaration, order, and reviewing and obtaining the relevant exhibits. She anticipated spending four hours reviewing an opposition and obtaining relevant exhibits. The cost of filing is $60. The Cost of the court reporter fees and certificate of non-appearance is $407.50. This calculation is reasonable. However, the calculation will be adjusted because Plaintiff did not file an opposition to this motion. The final calculation for sanctions totaling $1,367.50 is as follows: 4 hours (preparing motion + attending hearing) at a rate of $225 per hour plus costs in the amount of $467.50 (filing + court reporter fees).