Department 30, Spring Street Courthouse

January 3, 2023

20STCV38823

Motion to Compel Plaintiff to Appear for Deposition filed by Defendant The Cheesecake Factory Restaurants, Inc.

 

The motion is granted.

Plaintiff is ordered to appear for deposition within 20 days after the date of this order.

The request for sanctions is granted.  Sanctions in the amount of $1,660 are imposed jointly and severally on Plaintiff and Plaintiff’s Counsel of Record.  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.

 

This is an action for negligence and premises liability arising from a slip and fall incident which took place in November 2018. Plaintiff Tatiana Karpova filed her Complaint against Defendant The Cheesecake Factory Restaurants, Inc. on October 9, 2020.

On September 22, 2022, Defendant filed the instant motion to compel the second deposition of Plaintiff Tatiana Karpova.

Moving Arguments 

Plaintiff’s first deposition could not be completed due to issues with interpretation and audio. Plaintiff’s Counsel agreed to produce Plaintiff for a second session of deposition. Plaintiff did not appear for two noticed depositions because Plaintiff travelled to Russia. Defendant now seeks a court order compelling Plaintiff to appear for her second deposition.

Opposing Arguments

Plaintiff’s Counsel filed a declaration in opposition, testifying that Plaintiff has been in Russia for personal reasons and that she suffered a heart attack while in Russia. Plaintiff’s poor health prevents her from travelling back to the United States.

Reply Arguments

Defendant argues that it is entitled to take Plaintiff’s deposition and would be severely prejudiced if it cannot depose Plaintiff before trial. Defendant argues that Plaintiff’s deposition has been delayed for months and cannot rely on Plaintiff’s Counsel’s promises to keep him apprised of Plaintiff’s whereabouts because trial is imminent. Defendant argues that Plaintiff’s inability to leave Russia does not justify her failure to attend deposition because Defendant offered to conduct the deposition remotely.

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 states the specification of reasonably particularly of 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).) 

The court, on motion of any party, may grant leave to complete discovery of to have a motion concerning discovery heard closer to the initial trial date. (Code Civ. Proc., § 2024.050, subd. (a).)

On motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent's testimony would be taken, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party 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. (Code Civ. Proc., § 2025.450.)

Defendant moves to compel Plaintiff’s second deposition.

Defendant could not complete Plaintiff’s first deposition in December 2021 because of issues with Plaintiff’s interpreter and audio. (Clancey Decl., ¶3.) Plaintiff’s Counsel agreed to produce her for a second deposition session. (Id.) Defendant served a deposition notice setting Plaintiff’s second deposition for June 14, 2022. (Id., ¶5.) Plaintiff’s Counsel stated Plaintiff was unavailable for deposition because she was out of the country and would keep Defendant’s counsel apprised of deposition dates. (Id., ¶5.) After receiving no additional dates, Defendant issued a second notice setting deposition for September 1, 2022. (Id., ¶6.) Plaintiff’s Counsel again advised that Plaintiff would not be available for deposition and stated Plaintiff might be available for deposition in late October or November. (Id., ¶8.) Plaintiff did not appear for deposition on September 1, 2022 and Defendant took a certificate of non-appearance. (Id., ¶9.) Defendant’s Counsel sent another meet and confer email inquiring about deposition dates on September 1, 2022. (Id., ¶10.) At the time Defendant filed this motion, Plaintiff’s Counsel had not responded. (Id., ¶10.)

Plaintiff’s Counsel filed a declaration in opposition stating Plaintiff travelled to Russia for personal reasons in 2022 and has not been able to return because she suffered two heart attacks. (Sklar Decl., ¶¶4-7.) Plaintiff’s Counsel has not received any further information from Plaintiff. (Id., ¶7.) The Court notes that the heart attack alleged to have occurred in September happened on September 19, 2022, after the date of the noticed deposition. The Court further notes that no documentation is provided indicating that Plaintiff cannot now travel to the United States and/or participate in a deposition via Zoom. 

Plaintiff has delayed the completion of her deposition for more than a year and failed to appear for two properly noticed depositions. 

Any party may obtain discovery by taking oral deposition in a foreign nation. (Code Civ. Proc., section 2027.010.) Code Civ. Proc., section 2027.010 provides instructions on how depositions in foreign nations must be performed. 

Here, the Court notes that both of Defendant’s deposition notices specified that the deposition would be remote via video conference through Zoom. (Motion, Exh. A, C.) Given Defendant’s willingness to take a remote deposition, Plaintiff’s alleged inability to return to the United States does not justify her failure to appear for deposition. Plaintiff does not argue that her health prevents her from sitting for a remote deposition, only that it prevents her from returning to the United States. Because Plaintiff failed to appear for two properly noticed depositions, Defendant’s motion is granted.

With respect to sanctions, sanctions are mandatory where a motion to compel deposition was granted 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. (Code Civ. Proc., section 2025.450, subd. (g)(1). Defendants make this motion after being unable to schedule Plaintiff’s deposition for over six months. Although Plaintiff argues that her failure to appear is justified due to her inability to travel back to the United States, Defendant was willing to conduct a remote deposition and the Discovery Act expressly allows oral depositions to be taken in foreign nations.

Although Plaintiff’s Counsel testifies that Plaintiff suffered two heart attacks in September and October 2022, it is now January 2023 and Plaintiff’s Counsel has failed to explain why Plaintiff cannot appear for remote deposition. Because Plaintiff unreasonably failed to appear for deposition for over six months, the Court finds that Plaintiff did not act with substantial justification in opposing this motion. However, Plaintiff’s request for sanctions is excessive. The Court awards $1,660 for four hours of attorney time and filing fees.