Judge Kerry Bensinger, Case Number: 23STCV03236, Date: 2023-09-07 Tentative Ruling

On February 14, 2023, Plaintiff, Evelin Lopez, initiated this action against Defendant, Mario Avila, for injuries arising from a dog attack. Defendant is the alleged owner of the dog.

On July 26, 2023, Defendant filed this motion to compel Plaintiff to appear for deposition and to produce documents. Defendant requests sanctions against Plaintiff.

Any party may obtain discovery by taking in California the oral deposition of any person.¿ (Code Civ. Proc., § 2025.010.)¿ “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).)¿¿¿

“If a motion under [Code of Civil Procedure section 2025.450] 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).)¿¿¿

On April 5, 2023, Defendant noticed Plaintiff’s deposition for May 31, 2023. Plaintiff’s counsel objected to the deposition as unilaterally set but did not provide alternative dates. Thereafter, Defense counsel attempted to meet and confer about alternative dates. Having not received a response, Defense counsel continued the deposition date to June 8, 2023. Plaintiff’s counsel later indicated Plaintiff and counsel were unavailable for June 8, 2023. Defense counsel continued the deposition to July 5, 2023. Plaintiff’s counsel then requested the deposition be continued one last time. Pursuant to that request, Defendant continued Plaintiff’s deposition to July 17, 2023. However, on July 15, 2023, Plaintiff’s counsel advised Defense counsel that Plaintiff would be unavailable for the deposition because of an emergency. Due to the late notice, Defendant proceeded with the deposition and took Plaintiff’s non-appearance. On July 18, 2023, Defense counsel advised Plaintiff’s counsel that she would be filing a motion to compel and requesting sanctions unless Plaintiff appeared at deposition, completed her testimony, and paid for the court report, videographer, and Spanish-speaking interpreter. Plaintiff’s counsel advised the motion was not necessary as Plaintiff was willing to submit to a deposition in the next two weeks. However, Plaintiff’s counsel did not propose any dates for the deposition or offer to reimburse the costs of the missed deposition. (See Roth Decl.) Defendant shows that he diligently sought to schedule Plaintiff’s deposition yet Plaintiff has yet to appear.

Plaintiff’s opposition fails to counter any of the foregoing. Instead, Plaintiff’s counsel represents that he offered multiple dates for deposition after advising Plaintiff was unavailable for the July 17, 2023 deposition date due to an emergency. (Keshmiri Decl., ¶ 5.) However, Plaintiff’s counsel fails to attach any email correspondence showing he proposed dates for deposition. In sum, Defendant is entitled to an order compelling Plaintiff to appear for deposition.

Both parties request sanctions. Given that the Court has granted these motions, sanctions are warranted against Plaintiff and her counsel only. However, sanctions may only be imposed against Plaintiff for bringing this motion because Defendant did not indicate in the notice of motion that sanctions were being sought against Plaintiff’s counsel.[2] [3] (See CCP § 2023.040.) Accordingly, sanctions are imposed against Plaintiff in the amount of $3,596.65, representing 3 hours at Defense counsel’s hourly rate, $61.65 in filing fees, and $1,785 for the deposition cancellation fee.

The motion is granted. Plaintiff Evelin Lopez is ordered to appear for deposition and to produce documents responsive to the deposition notice within 30 days of this order.

The request for sanctions is granted. Plaintiff is ordered to pay sanctions in the amount of $3,596.65, to be paid to Defendant, by and through his counsel within 30 days of this order.

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.

[1] In Plaintiff’s caption to the opposition, Plaintiff opposes a non-existent motion to compel a site inspection. Plaintiff also appears to oppose a non-existent motor vehicle accident.

[2] Counsel’s conduct herein, however, may well have warranted sanctions.

[3] Plaintiff argues sanctions should not be imposed because Defendant failed to provide proper notice of sanctions. This argument lacks merit. A cursory review of Defendant’s notice of motion clearly indicates “that Defendant, Mario Avila, will seek a monetary award of $3,096.65 against Plaintiff EVELIN R. LOPEZ pursuant to Code Civ. Proc. Section 2025.450(a).”