Judge: Lee S. Arian, Case: 21STCV18818, Date: 2024-01-10 Tentative Ruling

Case Number: 21STCV18818    Hearing Date: January 10, 2024    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On May 19, 2021, Plaintiff Dewyine Ross (“Plaintiff”) filed this motor vehicle negligence action against Defendants Los Angeles County Metropolitan Transportation Authority and Richard Lawrence Walker. Trial is currently scheduled for May 22, 2024. 

On May 30, 2023, Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) filed the instant motion to compel the deposition of Plaintiff. Plaintiff opposes.

II.          LEGAL STANDARD

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).)

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. (Code Civ. Proc., § 2025.410, subd. (c).)

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).) On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent. (Code Civ. Proc., § 2025.450, subd. (g)(2).)

III.        DISCUSSION

Defendant first served a deposition notice on December 9, 2021, for a deposition to be taken on February 25, 2022. However, Plaintiff did not appear for the deposition. The deposition was then rescheduled for March 17, 2022, and then continued to September 28, 2022, but Plaintiff again did not appear. On September 29, 2022, defense counsel inquired as to the reason for plaintiff's failure to appear and available dates to reschedule the deposition but has not received a response. (See Thomas Decl.)

Plaintiff’s opposition is a declaration from counsel stating that he has tried to get his client to appear for deposition but on each scheduled occasion, his client had “last minute health issues.” (Yeager Decl., ¶2.)  The Court finds that insufficient to excuse the repeated, months apart, failures to appear, and the failure to schedule the deposition despite repeated requests to do so. As Defendant sent a notice of deposition on Plaintiff and Plaintiff failed to appear, and, further, Defendant has made numerous efforts to obtain a date for the deposition, the motion is GRANTED.

Defendant requests sanctions in the amount of $3,200 based on 3 hours to prepare the motion, 1.5 hours to reply, and 3.5 hours to appear for the hearing at the rate of $400/hour. The Court finds that sanctions are warranted as Plaintiff did not appear twice for deposition and did not respond to the inquiry as to the non-appearance.  Accordingly, the Court finds that sanctions are warranted and grants them in the reduced amount of $1,200. CONCLUSION

Defendant’s motion is GRANTED. Sanctions are granted in the amount of $1,200, to be paid within 30 days.

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 10th day of January 2024