Judge: Lisa R. Jaskol, Case: 22STCV13994, Date: 2023-09-14 Tentative Ruling

Case Number: 22STCV13994    Hearing Date: September 14, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On April 27, 2022, Plaintiffs King Eldridge and Wilfred Eldridge filed this action against Defendants Marilyn Davis (“Defendant”) and Does 1-10 for negligence. 

On August 8, 2022, Defendant filed an answer. 

On July 24, 2023, Defendant filed a motion to compel Plaintiff Wilfred Eldridge’s deposition to be heard on September 14, 2023.  Plaintiff has not filed an opposition. 

Trial is currently scheduled for February 26, 2024. 

PARTY’S REQUEST 

Defendant requests that the Court compel Plaintiff Wilfred Eldridge (“Plaintiff”) to appear for a deposition. Defendant also requests that the Court impose $836.65 in sanctions on Plaintiff. 

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).) 

A motion under Code of Civil Procedure section 2025.450, subdivision (b) 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 the petitioner has contacted the deponent to inquire about the nonappearance.”  (Code Civ. Proc., § 2025.450, subd. (b).)  

Code of Civil Procedure section 2025.450, subdivision (g)(1) provides that if a motion made under 2025.450 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. 

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it 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., § 2023.030, subd. (a).) 

Misuse of the discovery process includes "[f]ailing to respond or to submit to an authorized method of discovery" and "[m]aking or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (h).) 

DISCUSSION 

On August 3, 2022, Defendant served a notice that she would take Plaintiff’s deposition on November 22, 2022.  Plaintiff did not serve an objection to the deposition notice.  Before November 22, 2023, Defendant’s counsel emailed and phoned Plaintiff’s counsel asking for confirmation that Plaintiff would attend the November 22 deposition.  Plaintiff’s counsel did not respond to the email or the phone messages.  As a result, Defendant’s counsel cancelled the November 22, 2022 deposition. 

On January 31, 2023, Defendant served a notice setting Plaintiff’s deposition on February 15, 2023.  On February 09, 2023, Plaintiff’s counsel served an objection to the deposition notice, stating that neither Plaintiff nor Plaintiff’s counsel were available.  After the parties met and conferred, they agreed to schedule the deposition on April 21, 2023.  

On March 09, 2023, Defendant served a deposition notice setting Plaintiff’s deposition for April 21, 2023.  On April 13, 17, 18, 19, and 20, 2023, Defendant’s counsel asked Plaintiff’s counsel to confirm that Plaintiff would attend the deposition on April 21, 2023. 

On April 20, 2023, Plaintiff’s counsel informed Defendant’s counsel that Plaintiff was not available to attend the deposition on April 21, 2023. 

On April 21, 2023, Plaintiff failed to appear at his deposition.  Defendant’s counsel took a certificate of nonappearance. 

 Defendant’s counsel requested new deposition dates but Plaintiff’s counsel did not respond. 

On June 14, 2023, Defendant served another deposition notice on Plaintiff, setting the deposition for June 29, 2023.  On June 22, 2023, Defendant’s counsel asked Plaintiff’s counsel to confirm that Plaintiff would attend his deposition on June 29, 2023.  Plaintiff’s counsel advised that Plaintiff was not available.  On June 29, 2023, “Plaintiff and/or Plaintiff’s counsel” did not appear at the deposition. 

Defendant has made diligent attempts to take Plaintiff’s deposition and to meet and confer with Plaintiff’s counsel.  Plaintiff has failed to appear or provide dates, resulting in a 10-month delay in taking Plaintiff’s deposition. The Court finds good cause and grants the motion. 

Defendant is entitled to sanctions against Plaintiff and his counsel for misuse of the discovery process in failing to attend or cooperate in scheduling Plaintiff’s deposition. Defendant request sanctions of $836.65 based on 2 hours of attorney’s work at a rate of $200.00 per hour, 1 $375.00 certificate of non-appearance fee and 1 $61.65 filling fee. The request is reasonable and the Court grants it. 

CONCLUSION 

The Court GRANTS Defendant Marilyn Davis’s motion to compel deposition of Plaintiff Wilfred Eldridge.  Plaintiff is ordered to appear for a deposition within 30 days of the hearing on the motion. 

The Court GRANTS Defendant Marilyn Davis’s request for sanctions. Plaintiff Wilfred Eldridge and his counsel are ordered to pay Defendant Marilyn Davis $836.65 in sanctions within 30 days of the hearing on the motion. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.