Judge: Lisa R. Jaskol, Case: 22STCV17924, Date: 2023-11-27 Tentative Ruling

Case Number: 22STCV17924    Hearing Date: January 5, 2024    Dept: 28

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

BACKGROUND 

On May 31, 2022, Plaintiff Reginald Tyrone Ginn (“Plaintiff”) filed this action against Defendants Mehdy Martin Azemoon (“Defendant”) and Does 1-20 for negligence. 

On February 21, 2023, Defendant filed an answer. 

On October 23, 2023, Defendant filed a motion to compel Plaintiff to appear for a deposition and for monetary sanctions.  The motion was set for hearing on January 5, 2024.  Plaintiff has not filed an opposition. 

Trial is currently scheduled for April 4, 2024. 

PARTY’S REQUESTS 

Defendant requests an order compelling Plaintiff to appear at his deposition and awarding sanctions. 

LEGAL STANDARD 

A.   Party’s deposition 

Code of Civil Procedure section 2025.450 provides in part: 

“(a) 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. 

“(b) A motion under subdivision (a) 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. 

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“(g) (1) If a motion under 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, subds. (a), (b), (g)(1).) 

B.       Discovery sanctions 

“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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. 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).) 

“Misuses of the discovery process include, but are not limited to, the following: 

* * * 

“(d) Failing to respond or to submit to an authorized method of discovery.” 

(Code Civ. Proc., § 2023.010, subd. (d).) 

DISCUSSION 

Defendant asserts that on May 22, 2023, the day before Plaintiff’s properly noticed deposition, Plaintiff’s counsel informed Defendant’s counsel that Plaintiff could not attend the deposition.  Defendant re-noticed the deposition for June 27, 2023.  However, when Defendant’s counsel tried on June 26, 2023 to confirm that Plaintiff would attend the deposition, he received no response from Plaintiff’s counsel. 

On August 1, 2023, Defendant re-noticed Plaintiff’s deposition for August 23, 2023.  On August 17, 2023, Plaintiff’s counsel’s case manager informed Defendant’s counsel that he could not confirm Plaintiff’s attendance at the August 23 deposition.  On August 22, 2023, the case manager confirmed that Plaintiff would not attend the August 23, 2023 deposition.  The case manager stated that Plaintiff’s counsel had been unable to contact Plaintiff. 

Plaintiff’s counsel has not given Defendant's counsel potential dates for Plaintiff's deposition since August 22, 2023. 

The Court grants the motion to compel Plaintiff to attend his deposition.  The Court orders Plaintiff to attend a deposition within 30 days of the hearing on this motion. 

Defendant requests monetary sanctions of $706.65 based on three hours of attorney time at a rate of $215 per hour and a filing fee of $61.65. 

The Court awards sanctions of $491.65 based on two hours of attorney time and one filing fee. 

CONCLUSION 

          The Court GRANTS Defendant Mehdy Martin Azemoon’s motion to compel Plaintiff Reginald Tyrone Ginn to attend his deposition.  Plaintiff Reginald Tyrone Ginn is ordered to appear for his deposition within 30 days of the hearing on this motion.  Defendant is to make all necessary arrangements to take Plaintiff's deposition by this deadline. 

The Court GRANTS Defendant Mehdy Martin Azemoon’s request for monetary sanctions and orders Plaintiff Reginald Tyrone Ginn and his counsel to pay Defendant Mehdy Martin Azemoon $491.65 within 30 days of the hearing on this motion. 

          Moving party is ordered to give notice of these rulings. 

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