Judge: Kerry Bensinger, Case: 20STCV46634, Date: 2023-03-01 Tentative Ruling

Case Number: 20STCV46634    Hearing Date: March 1, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On December 7, 2020, Suzanne Stanford-Kraft (“Plaintiff”) commenced the present action by filing a Complaint against City of Los Angeles (“Defendant City”) and Does 1 through 100.  Plaintiff’s Complaint arises from personal injuries sustained by Plaintiff following a trip-and-fall upon public property owned by Defendant City.  Plaintiff’s Complaint alleges a single cause of action for “Premises Liability”.

          On January 9, 2023, Defendant City filed a Motion to Compel Plaintiff to Appear for the Agreed-To Second Session of Her Deposition, and Request for Sanctions in the Amount of $1,710.00 (hereinafter, “Motion to Compel Second Session of Deposition”).  Subsequently, on February 15, 2023, Plaintiff filed an Opposition in response to Defendant City’s Motion to Compel Second Session of Deposition.  The Court is not in receipt of a Reply. 

          The Court now considers Defendant City’s Motion to Compel Second Session of Deposition.

II.          LEGAL STANDARD

“If, after service of a deposition notice, a party to the action . . . , 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.”  (Code Civ. Proc., § 2025.450, subd. (a) [emphasis added].) 

“A motion under subdivision (a) shall comply with both of the following: ¶(1) The motion shall 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. ¶(2) The motion shall 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, subd. (b).) 

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that 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, subd. (g)(1).)

III.        DISCUSSION

Defendant City presently moves for an Order compelling Plaintiff to attend a second session of deposition, pursuant to Code of Civil Procedure section2025.450, subdivision (a).  (Code Civ. Proc., § 2025.450, subd. (a).)  Defendant City, furthermore, requests the Court issue monetary sanctions against Plaintiff, in accordance with Code of Civil Procedure section 2025.450, subdivision (g)(1), in the sum of $1,710.00.  (Code Civ. Proc., § 2025.450, subd. (g)(1).)  The Court addresses Defendant City’s requests in turn, respectively.

The Court concludes Defendant City is entitled to an Order compelling Plaintiff to attend a second session of deposition, pursuant to Code of Civil Procedure section 2025.450, subdivision (a).  (Code Civ. Proc., § 2025.450, subd. (a).)  On July 27, 2021, Plaintiff participated in the first session of her deposition by Zoom, while she was in her vehicle. (Harwell Decl., ¶ 3.) Due to technical difficulties associated with Plaintiff’s first session of deposition, the parties “agreed to continue the deposition” to a different date in order “to talk about liability and medical.”  (Id., ¶ 3, Ex. A.)  In an effort to schedule Plaintiff’s second session of deposition, Defendant City served a Notice of Second Session of Deposition upon Plaintiff on approximately July 26, 2022, which noticed Plaintiff’s deposition for August 17, 2022.  (Id., ¶ 6, Ex. B.)  Indicating the date for disposition was inconvenient for Plaintiff, Defendant City attempted to meet and confer with Plaintiff’s counsel for the purposes of determining a mutually agreeable date to continue Plaintiff’s deposition.  (Id., ¶¶ 7-11.)  Plaintiff’s counsel failed to confirm any available dates to continue Plaintiff’s second session of deposition.  (Ibid.) 

Subsequently, Defendant’s counsel sent a meet and confer communication to Levin & Nalbandyan, LLP (Plaintiff’s newly-associated counsel of record) in order to obtain mutually agreeable dates for deposition.  (Harwell Decl., ¶¶ 12-13.)  Plaintiff’s newly-associated counsel indicated deposition dates would be provided by November 30, 2022.  (Id., ¶ 15, Ex. D [“I will provide dates by Wednesday, November 30^th for 2^nd Session of Plaintiff’s deposition.”].)  Plaintiff’s newly-associated counsel failed to provide any dates by November 30, 2022.  (Id., ¶ 15.)  Without receiving cooperation from Plaintiff’s counsel, Defendant was obligated to serve a second Notice of Second Session of Deposition upon Plaintiff on approximately December 16, 2022, noticing Plaintiff’s deposition on December 29, 2022.  (Id., ¶ 16, Ex. E.)   Plaintiff served an “Objection” to Defendant’s Notice of Second Session of Deposition, contending “the deposition was unilaterally noticed and scheduled”, and did not appear for deposition.  (Id., Ex. F.)

The parties do not dispute that both Notices of Second Session of Deposition served upon Plaintiff were served properly.  (Code Civ. Proc., § 2025.450, subd. (a).)  Based on the foregoing, the Court concludes Defendant City is entitled to an Order compelling Plaintiff to attend a second session of deposition, pursuant to Code of Civil Procedure section 2025.450, subdivision (a).  (Code Civ. Proc., § 2025.450, subd. (a).) 

Prior to addressing Defendant City’s corresponding request for monetary sanctions, the Court briefly discusses Plaintiff’s contention Defendant City failed to appropriately meet and confer prior to filing the present Motion.  (Opp., at p. 2:4-4:10.)  The Court is not persuaded by Plaintiff’s arguments.  Defendant City has attempted to complete the second session of Plaintiff’s deposition for nearly eight (8) months, and has directly emailed counsel of record for the purpose of determining a mutually agreeable date for deposition.  (Harwell Decl., ¶¶ 3-23.) 

Defendant City is entitled to the issuance of monetary sanctions against Plaintiff, pursuant to Code of Civil Procedure section 2025.450, subdivision (c).  (Code Civ. Proc., § 2025.450, subd. (c).)  The Court does not find Plaintiff acted with substantial justification in failing to cooperate with Defendant City in determining a mutually agreeable date for deposition over the last eight (8) months.  Accordingly, the Court issues monetary sanctions against Plaintiff and Plaintiff’s counsel in the reduced sum of $660.00 (2 hours x hourly rate of $300.00, plus $60.00 filing fee).  (Harwell Decl., ¶¶ 24-26.)  Plaintiff’s request for monetary sanctions, which was made within the Opposition, is denied.

IV.         CONCLUSION

Defendant City’s Motion to Compel Plaintiff to Appear for the Agreed-To Second Session of Her Deposition, and Request for Sanctions is GRANTED.  Plaintiff is ordered to appear for deposition in no later than thirty (30) days from this Order.  Plaintiff and Plaintiff’s counsel, jointly and severally, are ordered to pay monetary sanctions to Defendant City in the sum of $660.00.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Dated this 1st day of March 2023