Judge Katherine Chilton, Case 20STLC02507 2022-08-01 Tentative Ruling

PROCEEDINGS: MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR SANCTIONS

Defendant Jorge Hernandez’s Motion to Compel Deposition is GRANTED in part and DENIED in part. Plaintiff Nicole Jackson is ordered to appear for deposition at a time, place, and date to be noticed by Defendant, within twenty (20) days of notice of this order. Plaintiff is not ordered to produce identification at the deposition.

Parties are ordered to meet and confer prior to the date of the deposition to discuss reasonable accommodations at the deposition.

Defendant’s request for sanctions is GRANTED in the amount of $640.68 to be paid by Plaintiff within thirty (30) days of notice of this order.

On March 16, 2020, Plaintiff Nicole Jackson (“Plaintiff”), in propria persona, filed an action against Defendant Jorge Hernandez (“Defendant”) for general and motor vehicle negligence. The action arises out of an automobile accident that allegedly occurred on March 16, 2018. On April 15, 2020, Defendant filed an Answer denying all allegations in the Complaint.

On June 1, 2020, Defendant filed the instant Motion for Order Compelling Plaintiff’s Attendance, Testimony, and Production of Documents at Deposition (“Motion”) and for an order imposing monetary sanctions. On June 23, Defendant filed a Reply to the Opposition to the Motion. Plaintiff had apparently served, but did not file, the Opposition. On June 30, 2022, the Court continued the hearing on the Motion and ordered Plaintiff to file the Opposition. On July 5, 2022, Plaintiff filed the Opposition.

“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.”

A motion under § 2025.450(a) must set forth specific facts showing good cause justifying the production of the requested documents in the deposition notice. (Code Civ. Proc., § 2025.450(b)(1).) The motion must also “be accompanied by a meet and confer declaration under § 2016.040, or, when the deponent fails to attend the deposition and produce documents…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc. § 2025.450(b)(2).) Good cause is construed liberally and has been found where documents are necessary for trial preparation. (See Associated Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583, 587.)

A court shall impose monetary sanctions in favor of the moving party if the motion to compel is granted, unless “the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450(g)(1).)

On April 20, 2020, Defendant’s counsel served Plaintiff with a Deposition Notice, set for September 1, 2020. (Motion p. 8, Kim Decl., ¶ 2.) The deposition was taken off calendar by Defendant because Plaintiff had not responded to discovery. (Ibid.) Thereafter, the deposition was rescheduled to August 31, 2021, then to February 4, 2022. (Ibid.) Plaintiff, however, failed to appear for her February 4, 2022, deposition. (Ibid.) Defendant met and conferred with Plaintiff and the deposition was rescheduled to March 23, 2022. (Ibid.)

Plaintiff appeared and testified on March 23, 2022, but the deposition was suspended because Plaintiff was experiencing pain and said she could not continue with the deposition. (Ibid. at ¶ 3; Ex. A.) The parties met and conferred about a continuance and agreed to find a date by March 28, 2022; Plaintiff stated on the record that she would let Defendant know about her availability “by the end of the week” or “perhaps even Monday.” (Ibid; Mot. p. 22 – Ex. A.) Defendant attempted to contact Plaintiff regarding the dates they had discussed but Plaintiff did not respond, so Defendant served a Notice of Continuance of Taking Deposition by Remote Video Conference, Part Two, setting the deposition for April 13, 2022. (Ibid. at ¶¶ 4-6; Exs. B-D.) The Notice was served by mail. (Ex. D – Proof of Service.) On March 29, 2022, Plaintiff notified Defendant by email that she does not accept correspondence by email or telephone (unless it’s a telephone call to discuss settlement) and requires service by first class mail only. (Ibid. at ¶ 7; Ex. E.) On the evening of April 12, Plaintiff sent Defendant an email regarding her availability in May but did not refer to the following day’s scheduled deposition. (Ex. F.) Plaintiff failed to appear for her deposition on April 13, 2022, and a certificate of nonappearance was prepared. (Ibid. at ¶ 9; Ex. G.) In the spirit of moving the case forward, Defendant advised Plaintiff that he was agreeable to hold part two of the deposition on May 13, 2022, date offered by Plaintiff, subject to plaintiff signing and returning the stipulation to appear by May 2, 2022[1]. (Ibid. at ¶ 10; Ex. H.) Plaintiff did not respond. (Ibid.) On April 22, 2022, Plaintiff stated that she was no longer available on May 13, 2022, and again offered alternative dates, but did not provide any explanation as to why she was not available on the earlier date. (Ibid. at ¶¶ 11-12; Ex. I.) Defendant tried one last time to set the deposition on May 13, 2022, subject to Plaintiff signing and returning the Stipulation by May 2, 2022. (Ibid. at ¶ 12; Ex. J.)

As of the date of the Motion, Defendant has not been able to conduct the rest of Plaintiff’s deposition. (Ibid. at ¶ 13.) Defendant now seeks an order compelling Plaintiff to attend the July 15, 2022, deposition. (Mot. p. 2.)

On June 30, 2022, the Court found that although Defendant had filed a Reply to Opposition, Plaintiff had not filed the Opposition with the Court. (6-30-22 Minute Order.) The Court continued the hearing and ordered Plaintiff to file the Opposition to the Motion prior to the rescheduled hearing on August 1, 2022.

On July 5, 2022, Plaintiff filed her Opposition. In the Opposition, Plaintiff states that she had informed Defendant that she was unable to appear remotely for a deposition, but the April 13, 2022, deposition was set to be conducted through video technology. (Jackson Decl. ¶ 4.) Plaintiff argues that she has “suggested alternative dates for the deposition and has provided the defendant with multiple dates; however, defendant has been unwilling to agree on any of these dates.” (Ibid. at ¶ 6.) She further states that she had “specifically informed the defendant that Plaintiff would not be available until after July 15, 2022, due to various medical exams and required appointments related to Plaintiff’s back injury” and that she is on powerful medication that can interfere with her memory and ability to recall information during the deposition. (Ibid. at ¶¶ 6-7; Decl. Opposition – Ex. A: May 3, 2022 Correspondence.) Finally, Plaintiff states that she did not receive the Notice of the April 13, 2022, deposition until April 5, 2022, and Defendant failed to provide timely notice of 10 days (plus 5 for mailing.) (Ibid. at ¶¶ 14-15.)

In the Reply, Defendant states that “Plaintiff repeatedly skirted efforts to schedule a second session of her deposition, again referencing purported health issues” but had not produced any “competent admissible medical documentation demonstrating that she cannot attend a remote deposition.” (Reply. p. 2.) Counsel states that on May 31, 2022, Plaintiff sent counsel an email containing a letter from Foundation Medical Group dated May 12, 2022, regarding patient’s inability to participate in the deposition; however, the patient’s name was redacted from the medical records. (Reply p. 2, Fn. 1.) Furthermore, Defendant states that its Notice for the deposition for April 13, 2022, was served by mail. (Reply p. 2.)

The Court finds that Defendant has made several attempts to continue the March 23, 2022, deposition, and satisfied the meet and confer requirement prior to filing the instant Motion. As of the date of this hearing, Defendant’s requested deposition date of July 15, 2022, is no longer feasible. Given that the date of the trial is approaching on October 3, 2022, with a discovery cutoff date of September 5, 2022, opportunities for rescheduling the deposition are limited. Therefore, the Court orders Plaintiff to appear for deposition at a time, place, and date to be noticed by Defendant, within 20 days of notice of this order. Given Plaintiff’s medical concerns, parties are ordered to meet and confer prior to the deposition date and discuss reasonable accommodations for Plaintiff that will allow the deposition to take place, including conducting an in-person deposition given Plaintiff’s stated technological challenges.

In the Motion, Defendant requests that Plaintiff “produce, at deposition, a written and photographic form of identification, including, but not limited to, a driver’s license, passport, or identification card. (Mot. p. 2.) In the Opposition, Plaintiff states that she “informed defendant that a copy of Plaintiff s driver license had previously been provided and no additional copies would be provided.” (Jackson Decl. ¶ 8.) A motion under § 2025.450(a) must set forth specific facts showing good cause justifying the production of the requested documents in the deposition notice. (Code Civ. Proc., § 2025.450(b)(1).) Here, Defendant has not set forth any facts regarding why Plaintiff must produce identification at the continuation of the deposition. Therefore, Plaintiff is not ordered to produce any identification documents at the deposition.

Defendant requests monetary sanctions in the amount of $640.68 as follows: reasonable attorney’s fees for meet and confer and preparation of motion calculated at approximately 3 hours at $160.17 per hour, anticipated court appearance at 1 hour at $160.17, and filing fees of $60, payable within 20 days. (Kim Decl. ¶ 16.)

Given the extensive meet and confer efforts, preparation of the Motion and the Reply, the Court finds Defendant’s request to be reasonable and GRANTS $640.68 in sanctions, to be paid within thirty (30) days of notice of this order.

For the foregoing reasons, Defendant Jorge Hernandez’s Motion to Compel Deposition is GRANTED in part and DENIED in part. Plaintiff Nicole Jackson is ordered to appear for deposition at a time, place, and date to be noticed by Defendant, within twenty (20) days of notice of this order. Plaintiff is not ordered to produce identification at the deposition.

Parties are ordered to meet and confer prior to the date of the deposition to discuss reasonable accommodations at the deposition.

Defendant’s request for sanctions is GRANTED in the amount of $640.68 to be paid by Plaintiff within thirty (30) days of notice of this order.

[1] There are several conflicting dates provided regarding the deadline for the Plaintiff to sign the Stipulation – May 20, 2022 (Kim Decl. ¶ 10), May 2, 2022 (Kim Decl. ¶ 12), and April 20, 2022 (Mot. p. 50, Ex. H.).