Judge: Linda S. Marks, Case: 2022-01240537, Date: 2022-12-05 Tentative Ruling

Motion to Compel Deposition (Oral or Written) filed by Larry Partin on 8/22/22

Plaintiff Larry Partin (“Plaintiff”) moves to compel Defendant Lori McGee (“Defendant”) to appear and testify at deposition and produce requested documents. Plaintiff also seeks monetary sanctions in the amount of $7,112.95.

Code of Civil Procedure section 2025.450(a) authorizes the Court to compel a party’s attendance and testimony at deposition and to produce documents described in the deposition notice if, after service of a deposition notice and without having served a valid objection, the party fails to appear for examination.

A motion under Code of Civil Procedure section 2025.450(a) must be accompanied by a declaration under Code of Civil Procedure section 2016.040 or, when the deponent fails to attend the deposition and produce documents, by a declaration stating that the moving party contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450(b)(2).)

Plaintiff first noticed Defendant’s deposition for May 26, 2022. (Declaration of Robert A. Bonito, ¶ 4.) Counsel for Defendant informed Plaintiff on May 25 that Defendant was unavailable. (Ibid.) The parties agreed to continue the deposition to July 11, 2022. (Id., ¶ 5.) On June 26, 2022, Defense counsel stated the deposition needed to be rescheduled again. (Id., ¶ 6.) They agreed to continue it to July 25, 2022. (Id., ¶ 7.) Defense counsel emailed Plaintiff’s counsel one hour before the deposition was to start stating that he had become ill and Defendant failed to appear. (Id., ¶ 8.) The deposition was rescheduled for August 11, 2022 and again, neither Defense counsel nor Defendant appeared. (Id., ¶¶ 9, 12.) Counsel for Plaintiff attempted to contact Defense counsel regarding the nonappearance but his efforts to make contact were ignored. (Id., ¶ 12.)

The Court finds that Defendant has failed to appear for examination despite proper notice.

The Court must impose monetary sanctions against Defendant unless it finds that Defendant acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450(g)(1).) The Court finds no substantial justification for Defendant’s repeated failure to appear.

Tentative Ruling: Plaintiff’s Motion to Compel is GRANTED.  Defendant is ORDERED to appear for deposition on January 4, 2023 at 10:00 a.m. at 6809 Indiana Avenue, Suite 100, Riverside, California 92506. Defendant is further ORDERED to produce all requested documents on or before that date. The Court GRANTS Plaintiff’s request for monetary sanctions against Defendant and her attorney of record, Keith Attlesey, in the amount of $1368.00.

Plaintiff to give notice.