Judge Lee S. Arian, Case Number: 21STCV36215, Date: 2024-01-16 Tentative Ruling

On September 30, 2021, Plaintiff Bryson Pope (“Plaintiff”) filed this action against Defendants Ajani Campbell (“Defendant”) and Does 1 to 10 inclusive, asserting on cause of action for motor vehicle negligence.

The Attachment to the Complaint does not provide details of the incident underlying this action. It only alleges that on February 1, 2021, the defendants were negligent in operating, owning, or entrusting their vehicle, and their negligence was the cause of Plaintiff’s injuries. The incident occurred at Manchester Avenue in Los Angeles, California, 90045.

On October 10, 2023, Plaintiff filed the instant motion to compel Defendant’s deposition and request for monetary sanctions.

On October 11, 2023, Plaintiff filed an ex parte application, seeking an order compelling Defendant’s deposition or, in the alternative, shortening the time for hearing of his motion.

On October 12, 2023, the Court denied the ex parte request to compel Defendant’s deposition but granted the request to shorten the time for the hearing of the motion. (Minute Order, dated October 12, 2023, p. 1.)

On January 8, 2024, Plaintiff filed a notice of non-opposition, (1) informing the Court that the opposition to the motion was due on January 2, 2024, but Defendant had not filed any opposition, and (2) asking the Court not to consider any late-filed opposition.

“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 . . . 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 . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

“A motion under subdivision (a) [above] 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.”

As an initial matter, the Court exercises its discretion to consider the late-filed opposition and reply. (Cal. Rules of Court, rule 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)

The Court also finds that Plaintiff has satisfied the meet and confer requirement. (Motion, Declaration of Ayang J. Inyang (“Inyang Decl.”), ¶¶ 2-10.)

Plaintiff’s counsel attests to the following facts in support of the motion: On January 19, 2023, counsel’s office served defense counsel with a deposition notice for Defendant for deposition on February 9, 2023. (Inyang Decl., ¶ 2; Exhibit A – a copy of the deposition notice.) However, on February 7, 2023, two (2) days before that deposition, defense counsel’s office served an untimely objection to the deposition notice, indicating that Defendant was unavailable for the February 9th deposition. (Inyang Decl., ¶ 3.) Plaintiff’s counsel requested alternative dates for the deposition, but defense counsel’s office only provided dates after the discovery cut-off date. (Inyang Decl., ¶ 4.) Therefore, Plaintiff’s counsel indicated that the February 9 deposition would proceed as noticed, and when Defendant did not appear at that deposition, a notice of nonappearance was taken. (Inyang Decl., ¶ 4.)

On March 29, 2023, Plaintiff’s counsel’s office served defense counsel with a second deposition notice for deposition on April 19, 2023. (Inyang Decl., ¶ 5; Exhibit D – a copy of the deposition notice.) However, when counsel’s office could not confirm with defense counsel Defendant’s appearance at the April 19th deposition, that deposition was taken off the calendar. (Inyang Decl., ¶ 5.)

On May 30, 2023, Plaintiff’s counsel’s office served its third deposition notice on defense counsel for deposition on June 22, 2023. (Inyang Decl., 6; Exhibit E – a copy of the deposition notice.) However, defense counsel indicated that the attorney handling the deposition would be unavailable on June 22, that they were available on July 11, and were attempting to reach Defendant to confirm his deposition for July 11. (Inyang Decl., ¶ 6.) Subsequently, however, defense counsel’s office indicated that the July 11 deposition date no longer worked and requested new dates. (Inyang Decl., ¶ 7.) Plaintiff’s counsel’s office provided new dates; however, no one from defense counsel’s office responded to the correspondence. (Inyang Decl., ¶ 7.)

On September 15, 2023, Plaintiff’s counsel’s office served the fourth deposition notice on defense counsel for deposition on October 4, 2023. (Inyang Decl., ¶ 8; Exhibit H – a copy of the deposition notice.) However, defense counsel informed Plaintiff’s counsel’s office that Defendant would not appear and had not received notice for the deposition since defense counsel’s office had not communicated with him for months. (Inyang Decl., ¶ 9.) When Defendant did not appear for his deposition on October 4, 2023, a notice of nonappearance was taken. (Inyang Decl., ¶ 10.)

In opposition, defense counsel states (among other things) that he has been unable to reach Defendant and believes Defendant may be incarcerated. (Opposition, Declaration of Andrew P. Cristea (“Cristea Decl.”), 9.) Defense counsel also states that from the outset of this case, he has been professional, civil, and cooperative with Plaintiff’s counsel (e.g., he agreed to reschedule Plaintiff’s deposition at Plaintiff’s counsel’s request). (Cristea Decl., 3-7.)

Defense counsel seeks 45 days to make Defendant available for deposition. (Motion, p. 5:24-25.)

In reply, Plaintiff argues (among other things) that defense counsel should have filed a motion for a protective order against the deposition notices if he could not reach his client.

The Court finds it proper to grant the request to compel Defendant’s deposition since Plaintiff is entitled to take the deposition.

“If a motion [to compel a deposition] is granted, the court shall impose a monetary sanction … 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).)

Plaintiff seeks sanctions of $1,748.35 against Defendant and his attorneys of record, jointly and severally. The amount consists of 5.5 hours at counsel’s billing rate of $230 per hour (equals $1,265) for briefing on this motion, plus $483.35 associated with Defendant’s failure to appear at two (2) of his noticed depositions. (Inyang Decl., ¶ 11.)

However, the Court will impose the sanctions on Defendant only, not defense counsel, since defense counsel has testified he was unable to reach Defendant and Defendant has not submitted any declaration explaining his failure to appear at the depositions.

Plaintiff Bryson Pope’s Motion to Compel Defendant Ajani Campbell’s Deposition is GRANTED as follows.

The request to compel Defendant Ajani Campbell’s deposition is GRANTED. Defendant is ordered to appear at his deposition within 45 days of this ruling or at a later time that Plaintiff agrees to in writing. Plaintiff shall serve Defendant with a deposition notice for the new deposition date.

The request for sanctions is GRANTED. Defendant is ordered to pay Plaintiff sanctions of $1,748.35.

This ruling is without prejudice to Defendant’s right, if any, to file a protective order against the deposition.

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’s 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.

Hon. Lee S. Arian

Judge of the Superior Court