Judge: Katherine Chilton, Case: 21STLC06457, Date: 2023-01-19 Tentative Ruling

Case Number: 21STLC06457    Hearing Date: January 19, 2023    Dept: 25

PROCEEDINGS:      MOTION TO COMPEL ATTENDANCE AND TESTIMONY AT DEPOSITION; REQUEST FOR MONETARY SANCTIONS

MOVING PARTY:   Defendant Geneva Ann Burns

RESP. PARTY:         None

MOTION TO COMPEL ATTENDANCE AND TESTIMONY 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 Geneva Ann Burns is CONTINUED to MARCH 1, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Defendant must file supplemental papers as discussed herein.  Failure to do so may result in the Motion being placed off calendar or denied.

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:          None filed as of January 11, 2023.                     [   ] Late                      [X] None

REPLY:                     None filed as of January 11, 2023.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On September 3, 2021, Plaintiff Josua Gilberto Avila (“Plaintiff”) filed an action against Defendant Geneva Ann Burns (“Defendant”), for motor vehicle and general negligence, arising out of an alleged automobile accident that took place on September 10, 2019.

On November 9, 2021, Defendant filed an Answer to the Complaint and Demand for Jury Trial.

On December 6, 2022, Defendant filed the instant Motion for Order Compelling Plaintiff’s Attendance and Testimony at Deposition and Request for Sanctions (“Motion”).

No opposition 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).)

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).)

III.            Discussion

A.    Motion to Compel

Defendant moves to compel Plaintiff to attend and testify at a deposition according to notices served on June 30, 2022, and July 22, 2022.  (Mot. pp. 1-2.)

On June 30, 2022, Defendant served Plaintiff with a Notice of Taking Deposition setting a deposition for July 14, 2022.  (Baharvar Decl. ¶ 3; Ex. A.)  On July 13, 2022, defense counsel reached out to Plaintiff’s counsel to confirm the deposition scheduled on the following day but was informed by Plaintiff’s counsel that the deposition had to be rescheduled.  (Ibid. at ¶ 4.)  On July 18, 2022, Plaintiff’s counsel sent an email to defense counsel offering the following dates for a deposition: August 8, 11, or 12, or September 2, 3, or week of September 19.  (Ibid. at ¶ 5, Ex. B.)  Defense counsel responded on July 19, 2022, stating that she would send a notice of deposition shortly, setting a deposition for September 19, 2022.  (Ibid., Ex. B.)

On July 22, 2022, Defendant served Plaintiff with another Notice of Taking Deposition, setting deposition for September 19, 2022.  (Ibid. at ¶ 6, Ex. C.)  On September 16, 2022, defense counsel emailed Plaintiff’s counsel and received confirmation of attendance at the upcoming deposition.  (Ibid. at ¶ 7, Ex. D.)  However, Plaintiff did not appear at the deposition on September 19, 2022.  (Ibid. at ¶ 8.)  Defense counsel states that Plaintiff’s counsel has not reached out to reschedule the deposition.  (Ibid. at ¶ 9.)

Defendant has submitted evidence that Plaintiff was served with a Notice of Taking Deposition and asked to reschedule the first scheduled deposition.  Subsequently, Defendant rescheduled the deposition date and served a second Notice of Taking Deposition.  Plaintiff did not appear at the second scheduled deposition.  However, the Court does not find that Defendant has submitted sufficient evidence to demonstrate that she attempted to meet and confer with Plaintiff regarding his failure to appear at the second scheduled deposition, as required by Code of Civil Procedure § 2016.040.

For this reason, Defendant’s Motion to Compel Plaintiff’s Attendance and Testimony at Deposition is CONTINUED.  Defendant is ordered to submit evidence that she met and conferred with Plaintiff regarding Plaintiff’s failure to appear at the scheduled deposition on September 19, 2022.

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 monetary sanctions in the amount of $461.65 to be paid by Plaintiff, as follows: $400.00 for attorney’s fees for two (2) hours of preparing and filing the instant Motion, at a rate of $200.00 per hour, and $61.65 in filing fees.  (Baharvar Decl. ¶ 11.)

Given that the Court continues the hearing on the Motion, the matter of sanctions will be addressed at the next scheduled hearing.

IV.           Conclusion & Order

For the foregoing reasons,

The Motion to Compel Plaintiff’s Attendance and Testimony at Deposition filed by Defendant Geneva Ann Burns is CONTINUED to MARCH 1, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Defendant must file supplemental papers as discussed herein.  Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.