Department 30, Spring Street Courthouse

August 1, 2022

20STCV48650

Motion to Compel Deposition of Plaintiff Susanne Guzman

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

 Plaintiff’s Counsel is ordered to pay $835 in sanctions 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 December 22, 2020, Plaintiff Susanne Guzman filed her complaint against Defendant Galeana Ventura Agustin alleging a cause of action for motor vehicle negligence. Plaintiff alleges Defendant negligently failed to yield and struck Plaintiff while she was walking through a crosswalk.

On July 6, 2022, Defendant filed her motion to compel Plaintiff’s attendance at deposition.

 

 

Defendant states Plaintiff failed to attend a deposition scheduled for April 8, 2022. The parties previously rescheduled the deposition three times. After Plaintiff failed to attend, Defendant’s counsel requested reimbursement of the court reporter’s fees. 

Plaintiff did not file an opposition, but submitted a declaration in opposition to Defendant’s motion. The declaration states Plaintiff failed to attend her deposition because Plaintiff’s counsel’s newly hired calendaring clerk mistakenly did not calendar the deposition date. Plaintiff then offered to attend a deposition on July 18, 2022.

Defendant argues that any written or oral opposition should not be considered because they are untimely pursuant to Code Civ. Pro section 1005 subd. (c). Additionally, Defendant argues no opposition was filed, only a declaration by Plaintiff’s counsel that contradicts many email exchanges indicating Plaintiff and her counsel previously rescheduled the deposition because they could not appear at her deposition.

 

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).) 

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).)

Defendant moves for an order compelling the attendance of Plaintiff Susanne Guzman at her deposition. Defendant additionally seeks the issuance of monetary sanctions against Plaintiff and Plaintiff’s counsel in the amount of $835.

Here, Defendant is entitled to an order compelling Plaintiff’s attendance at deposition. Plaintiff was required to appear for her deposition on April 8, 2022 and failed to do so. (Katiraie Decl., ¶7.) Plaintiff’s counsel subsequently refused to answer Defendant’s counsel’s emails or phone calls. (Id., ¶10; Exhibit H.) The parties have not agreed on a new deposition date. (Katiraie Decl., ¶ 11.) Defendant is entitled to conduct the deposition of Plaintiff to obtain necessary testimony prior to the trial date. 

Plaintiff’s opposition consists of a declaration that was not timely filed according to Code Civ. Pro. section 1005, subd. (c). Plaintiff’s claim that the failure to appear was the result of a calendaring error does not hold water in light of all the evidence presented. Accordingly, Defendant’s 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.

Since Plaintiff’s Counsel has submitted a declaration taking responsibility for the failure to appear, the sanctions will be imposed against Counsel only.    

Defendant’s calculation of sanctions is supported by the Declaration of Defendant’s Counsel, Chanel Katiraie. She states the moving papers took 2 hours to prepare and attendance at the hearing on this motion will take 1 hour. Her office’s customary hourly rate is $175. The filing fee for this motion was $60. The court reporter’s no-show fee was $250. Defendant requests a total of $835. These fees are reasonable.