Judge: Katherine Chilton, Case: 19STLC08832, Date: 2023-03-02 Tentative Ruling

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Case Number: 19STLC08832     Hearing Date: March 2, 2023    Dept: 25

PROCEEDINGS:      MOTION TO COMPEL ATTENDANCE AND PRODUCTION OF DOCUMENTS AT DEPOSITION; REQUEST FOR MONETARY SANCTIONS

MOVING PARTY:   Defendant Eric Crutchfield

RESP. PARTY:         Plaintiff Kimberly Davillier

MOTION TO COMPEL ATTENDANCE AND PRODUCTION OF DOCUMENTS AT DEPOSITION; REQUEST FOR MONETARY SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

The Motion to Compel Plaintiff’s Attendance and Testimony at Deposition filed by Defendant Eric Crutchfield is GRANTED.  Plaintiff is ordered to appear at a properly noticed deposition, within thirty (30) days of the Court’s Order, and have her video camera turned on if the deposition is conducted remotely through a videoconferencing application.

The Court also awards $760.00 in monetary sanctions to be paid by Plaintiff and her counsel.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          Filed on February 22, 2023.                                    [X] Late                       [   ] None

REPLY:                     None filed as of February 28, 2023.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On September 25, 2019, Plaintiff Kimberly Davillier (“Plaintiff”) filed an action against Defendant Eric Crutchfield (“Defendant”) arising out of an alleged automobile accident that took place on October 8, 2017.

On April 13, 2021, Defendant filed an Answer to the Complaint.

On March 24, 2021, pursuant to the oral stipulation of the parties, the Court continued the trial date to March 1, 2022.  (3-24-21 Minute Order.)  On February 14, 2022, the Court, on its own motion, continued the trial date to June 23, 2022.  (2-14-22 Minute Order.)  On June 15, 2022, pursuant to stipulation of the parties, the Court continued the trial date to September 7, 2022, along with corresponding discovery and motion cut-off dates.  (6-15-22 Stipulation and Order.)  On September 7, 2022, pursuant to defense counsel’s oral request, the Court continued the trial date to March 14, 2023.  (9-7-22 Minute Order.)

On January 27, 2023, Defendant Crutchfield filed the instant Motion to Compel Plaintiff’s Attendance and Production of Documents at Deposition and Request for Sanctions (“Motion”).

On February 22, 2023, Plaintiff’s counsel Kenneth C. Yeager filed an Opposition to Defendant’s Motion (“Opposition”).  No reply has been filed.

II.              Legal Standard

Code of Civil Procedure § 2025.450(a) provides:

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”

            The motion shall “(1) set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “(2) be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Code Civ. Proc. § 2025.450(b)(2).)

III.            Discussion

A.    Motion to Compel

Defendant moves to compel Plaintiff “to appear and testify at her properly noticed deposition, within thirty (30) days of the Court’s Order.”  (Mot. p. 2.)

On April 2, 2021, Defendant served Plaintiff with the first deposition notice.  (Navarro Decl. ¶ 4.)  Due to a delay with discovery responses, the scheduled deposition was taken off calendar.  (Ibid.)  On July 27, 2022, Defendant served Plaintiff with a second deposition notice.  (Ibid. at ¶ 5.)  Soon after, Plaintiff’s attorney informed defense counsel that Plaintiff was unavailable on the date of the deposition and requested to reschedule to September, which was not possible “because it was beyond the discovery deadline and potentially beyond the current September 7, 2022 trial date.”  (Ibid. at ¶ 5.)  Parties had to continue the trial.  (Ibid.)

On November 29, 2022, Defendant served Plaintiff with the third deposition notice, incorrectly labeled as “Second Notice,” to take place remotely via Zoom on December 14, 2022.  (Ibid. at ¶ 6, Ex. A; Mot. pp. 3-4.)  Defense counsel states that on December 14, 2022, Plaintiff refused to turn on her camera during the virtual deposition, even after he asked her to.  (Navarro Decl. ¶ 7, Ex. B; Mot. p. 4.)  Specially appearing counsel for Plaintiff “did not move for protective order or provide an objection as to why the Plaintiff should only be allowed to appear for deposition through audio and not video.”  (Mot. p. 4.)  As a result, the deposition had to be suspended.  (Ibid.)

Subsequently, defense counsel sent a meet and confer letter to Plaintiff’s counsel of record.  (Navarro Decl. ¶ 8, Ex. C.)  As of the date of the instant Motion, Defendant has not received a response to the letter.  (Ibid.)

Defendant argues that “[t]he deposition notice specifically indicated that the deposition would take place via zoom video conference” and did not state that Plaintiff could appear through audio only.  (Mot. p. 6.)  Plaintiff and her counsel did not object to the notice of the deposition requiring her to appear remotely by Zoom video conference.  (Ibid.)

Defendant also states that “Plaintiff’s failure to appear for deposition as noticed and then their [sic] plaintiff’s counsel’s failure to confer with Defendant has and will continue to severely prejudice Defendant’s ability to assess the claims, defenses, potential settlement and viability of dispositive motions in sufficient time prior to the March trial date.”  (Ibid. at p. 7.)

On February 22, 2023, Plaintiff’s counsel filed a late Opposition to the Motion.  The Court, in its discretion considers the late Opposition.  (California Rules of Court, rule 3.1300(d).)  Counsel apologizes to Defendant and the Court for Plaintiff’s refusal to turn on her camera.  (Yeager Decl. ¶ 2.)  He states that “[n]o sanctions are warranted to [his] office” and suggests that the Court order “another date in 20 days…reflecting that [Plaintiff] must have her camera on.”  (Ibid. at ¶ 3.)

The Court finds that Defendant has submitted sufficient evidence to show that Plaintiff was served with a Notice of Taking Deposition and did not comply with the Notice by refusing to turn on her camera during the remote deposition through Zoom.  Thus, Defendant has satisfied the requirements of Code of Civil Procedure § 2025.450 and is entitled to compel Plaintiff’s attendance and testimony at deposition.  Although the caption of Defendant’s Motion also refers to production of documents, there is no reference to any documents in the Motion.  Thus, the Court’s order does not address the production of any documents.

Defendant’s Motion to Compel Plaintiff’s Attendance and Testimony at Deposition is GRANTED.  Plaintiff is ordered to appear at a properly noticed deposition, within thirty (30) days of the Court’s Order, and have her video camera turned on during the virtual videoconference deposition.

B.    Sanctions

            Code of Civil Procedure § 2023.030(a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.  A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery.  (Code Civ. Proc., § 2023.010(d).)  In addition, a court shall impose monetary sanctions if a motion to compel a deposition is granted unless “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(g)(1).)

            Defendant requests sanctions due to Plaintiff’s willful and intentional refusal “to comply with her discovery obligations” and appear at the deposition as noticed.  (Ibid. at p. 9.)  Moreover, Plaintiff’s specially appearing counsel “refused to instruct the plaintiff to turn on her camera” and Plaintiff’s counsel of record did not respond to defense counsel’s attempts to meet and confer.  (Ibid.)  As a result, Defendant has had to file the instant Motion.  (Ibid.)

            Plaintiff’s counsel opposes Defendant’s request and states that “[n]o sanctions are warranted to my office.”  (Yeager Decl. ¶ 3.)  However, Plaintiff’s counsel does not set forth any reason why sanctions against him and his office are not warranted.

            Defendant requests monetary sanctions in the amount of $2,160.00 to be paid by Plaintiff and her counsel, as follows: three (3) hours for preparing the instant Motion, two hours (2) for reviewing and replying to an opposition, and one (1) hour to appear at the hearing, at a rate of $350.00, plus a filing fee of $60.00.  (Navarro Decl. ¶ 9.)

            The Court finds Defendant’s request for a simple discovery motion to be excessive.  Moreover, Defendant has not filed a reply to Plaintiff’s Opposition to the Motion.  The Court awards $760.00 in monetary sanctions as follows: one (1) hour for preparing the instant Motion, one (1) hour for appearing at the hearing on the Motion, at a billing rate of $350.00, and $60.00 in filing fees, to be paid by Plaintiff and her counsel.

IV.           Conclusion & Order

For the foregoing reasons,

The Motion to Compel Plaintiff’s Attendance and Testimony at Deposition filed by Defendant Eric Crutchfield is GRANTED.  Plaintiff is ordered to appear at a properly noticed deposition, within thirty (30) days of the Court’s Order, and have her video camera turned on if the deposition is conducted remotely through a videoconferencing application.

The Court also awards $760.00 in monetary sanctions to be paid by Plaintiff and her counsel.

The Trial Date is continued one last time to April 26, 2023 at 8:30 a.m.  The parties are ordered to comply with the Standing Order for Department 25 and file their joint exhibit and witness lists at least 10 days prior to trial.

Moving party is ordered to give notice.