Judge: John C. Gastelum, Case: 21-01227863, Date: 2023-01-05 Tentative Ruling

Motion to Compel Deposition (Oral or Written)

Defendant, AmeriColor Corporation (“Defendant” or “AmeriColor”), moves for an order compelling the in-person deposition of Plaintiff, Maria Sanchez (“Plaintiff”), within fifteen (15) days following the Court’s ruling, and imposing sanctions in the amount of $11,885 against Plaintiff and/or her counsel of record.

The opposing and reply papers indicate that Plaintiff has agreed to appear in-person for deposition on December 29, 2022. Accordingly, the Court DENIES the motion to compel an in-person deposition of Plaintiff as MOOT. The issue of sanctions remains.

Defendant seeks monetary sanctions in the amount of $11,885 pursuant to Code of Civil Procedure sections 2025.450, 2023.030, and 2023.010.

Plaintiff contends Plaintiff acted with substantial justification and the amount of sanctions sought is exorbitant and excessive.

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (California Rules of Court, rule 3.1348(a).)

The court may impose a monetary sanction ordering that one engaging in conduct that is a misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, included attorney’s fees incurred as a result of that conduct. (Code Civ. Proc. § 2023.030(a).) The court shall impose a monetary sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Ibid.)

Misuses of the discovery process include “[f]ailing to respond or to submit to an authorized method of discovery,” and “[m]aking, without substantial justification, an unmeritorious objection to discovery.” (Code Civ. Proc. § 2023.010(d), (e).)

California Rules of Court (“CRC”), rule 3.1010 states, in part: 

Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided: (1) Written notice of such appearance is served by personal delivery, e-mail, or fax at least five court days before the deposition;

(2) The party so appearing makes all arrangements and pays all expenses incurred for the appearance;

(3) Any party or attorney of record may be physically present at the deposition at the location of the deponent with written notice of such appearance served by personal delivery, email, or fax, at least five court days before the deposition, and subject to Code of Civil Procedure section 2025.420. An attorney for the deponent may be physically present with the deponent without notice.”

(CRC, rule 3.1010(b), emphasis added.)

It also states, “[a] deponent must appear as required by statute or as agreed to by the parties and deponent.” (CRC, rule 3.1010(c).) CRC, rule 3.1010 additionally states, “[o]n motion by any person, the court in a specific action may make such other orders as it deems appropriate.” (CRC, rule 3.1010(d).)

Code of Civil Procedure section 2025.310 states, in part:

(a) At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition.

(b) Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent.

(c)  The procedures to implement this section shall be established by court order in the specific action or proceeding or by the California Rules of Court.

(d)  An exercise of the authority granted by subdivision (a) or (b) does not waive any other provision of this title, including, but not limited to, provisions regarding the time, place, or manner in which a deposition shall be conducted.

(Code Civ. Proc. § 2025.310(a)-(d), emphasis added.)

The language of CRC, rule 3.1010(b), Code of Civil Procedure section 2025.310(b) and the legislative history of Senate Bill No. 1146, support that a deponent is to appear in person for a deposition if the deposition is noticed as such, and that defendant and/or defendant’s counsel would be entitled to be physically present at the deposition at the location of the deponent, i.e., Plaintiff, subject to Code of Civil Procedure section 2025.420 which concerns protective orders.

In this case, Defendant and/or defense counsel sought to be physically present at the deposition at the location of the deponent and noticed Plaintiff’s deposition accordingly. Plaintiff has not moved for a protective order. Plaintiff also does not submit sufficient evidence to support that Plaintiff is particularly vulnerable to COVID-19 or that some medical condition precludes her from attending the deposition in-person.

Defendant has provided and continues to provide that it is willing to ensure that all attendees are fully vaccinated and masked.

Based on the foregoing, it does not appear Plaintiff acted with substantial justification or that other circumstances would make the imposition of sanctions unjust.

There is insufficient evidence submitted to the Court to support that an hourly rate of $845 is reasonable. The Court finds that an hourly rate of $650 is reasonable for an attorney that has been licensed for 11 years and practicing in employment law. The Court GRANTS reduced monetary sanctions in the amount of $9,350 against Plaintiff and/or Plaintiff’s counsel, Kordab Law Offices.

The Court GRANTS Defendant’s request to judicially notice a copy of a bill analysis for Senate Bill No. 1146 as analyzed by the Senate Rules Committee during the 2019-2020 regular session on August 27, 2020 (Ex. 1) and a copy of a bill analysis for Senate Bill No. 1146 as analyzed by the Senate Judiciary Committee during the 2019-2020 regular session on May 20, 2020.

Defendant to give notice.