Department 30, Spring Street Courthouse

August 15, 2022

21STCV19312

Motions to Compel Deposition of Plaintiffs Claudia Morales and Josue J. Lopez filed by Defendants Long Beach Memorial Medical Center and Ali Khoynezhad

Both motions to compel are granted.

Plaintiffs are ordered to appear for deposition and to produce requested documents within 30 days after the date of this order.

With respect to Plaintiff Claudia Morales, the Court imposes sanctions in the amount of $1,459.60 jointly and severally against Plaintiff and her attorney of record. The sanctions are due within 30 days after the date of this order.

With respect to Plaintiff Josue Lopez, the Court imposes sanctions in the amount of $285 jointly and severally against Plaintiff and her attorney of record. The sanctions are due within 30 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, hospital negligence, and loss of consortium arising from treatment Plaintiff Claudia Morales underwent at Long Beach Memorial Medical Center in November 2019. 

On May 24, 2022, Defendants filed their motions to compel Plaintiffs’ attendance at deposition.

 

Defendants move to compel the depositions of Plaintiffs Claudia Morales and Josue L. Lopez. Defendants seek sanctions in the amount of $2,359.60 against Plaintiff Claudia Morales and her counsel. Defendants seek sanctions in the amount of $510 against Plaintiff Josue L. Lopez and his counsel.   

Defendants argue that Plaintiffs repeatedly failed to submit to their depositions and failed to produce documents requested in conjunction with the depositions.

Plaintiffs argue that they intended to submit to their depositions and attempted to work with Defendants’ counsel to schedule deposition dates. Plaintiffs also argue that the motion is premature because new Defendants will be joining the case. Plaintiffs contend that granting Defendants’ motion will severely prejudice Plaintiffs because they will be subjected to multiple depositions. 

Defendants argue that Plaintiffs have failed to appear at their depositions because of Plaintiffs’ counsel’s unavailability and schedule conflicts with other trials. Defendants point out that Plaintiffs’ counsel’s scheduling issues are not excuse and they have waited long enough to move forward with Plaintiffs’ depositions.

 

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).)

Defendants move to compel Plaintiffs’ attendance at their depositions and to compel Plaintiffs to produce documents requested at deposition. According to Defendants’ counsel, Rachael C. Kogen, Plaintiffs unilaterally canceled the depositions a total of three times, in December 2021, in January 2022, and most recently in February 2022. (Kogen Decl., Exhibit B.) After Plaintiffs failed to appear at the most recent deposition date, Defendants took certificates of non-appearance with Plaintiffs’ counsel present. (Id., ¶3.) Defendants have communicated with Plaintiffs throughout the discovery process attempting to complete Plaintiffs’ depositions to no avail. (Id., ¶¶ 1-3.)

Plaintiffs argue that Plaintiffs’ counsel has been unable to appear at deposition due to staffing issues, counsel’s scheduling conflicts, heavy time commitments to other trials, and because Plaintiffs require more time to serve the last defendant so that Plaintiffs are not subjected to multiple depositions. (Decl. Ter-Mamabreyan, ¶¶10-18.)

Defendants are entitled to orders compelling Plaintiffs to submit to their depositions and produce the requested documents at deposition. Plaintiffs’ depositions have been significantly delayed. The Court notes that with respect to Plaintiff Claudia Morales her deposition was first noticed for August 17, 2021 and with respect to Plaintiff Josue Lopez his deposition was first noticed for August 19, 2021. Even if the delays were caused by Plaintiffs’ counsel’s schedule conflicts, this is no excuse for a delay of one year in the taking of Plaintiffs’ depositions. 

Plaintiffs are ordered to submit to their depositions and produce the documents requested in conjunction with the depositions. 

With respect to sanctions, the Court finds that in repeatedly failing to submit to deposition, Plaintiffs have abused the discovery process. 

Defendants seek sanctions from Plaintiff and Plaintiff’s counsel in the amount of $2,359.60 with respect to Claudia Morales for seven hours of attorney time at a rate of $225 per hour, the non-appearance cost of $724.60, and $60 in filing fees. Defendants request $510 with respect to Plaintiff Josue Lopez  and Plaintiff’s counsel for two hours of attorney time and filing fees. Since these motions were substantially the same and unopposed, the amounts will be adjusted to $1,459.60 for Claudia Morales (3 hours of attorney time plus fees) and $285 for Josue Lopez (1 hour of attorney time plus filing fees).