Judge: Lynne M. Hobbs, Case: 22STCV28124, Date: 2023-11-13 Tentative Ruling

Case Number: 22STCV28124    Hearing Date: February 16, 2024    Dept: 30

TENTATIVE

Defendant Alida Pontifes’ motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Emma Castillo is ordered to appear for deposition within 30 days of this order. The request for sanctions against Plaintiff (only) is GRANTED. Plaintiff Emma Castillo is ordered to pay Defendant monetary sanctions in the amount of $432 within 30 days of this order.

Moving party is ordered to give notice.

Legal Standard

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

CCP section¿2025.450(a) provides:¿“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(a).)

CCP section¿2025.450(b) provides:¿“A motion under subdivision (a)… 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.”¿ (Id., § 2025.450(b).)

Discussion

On March 22, 2023, Defendant served Plaintiff Emma Castillo with a notice of taking deposition scheduled for May 17, 2023. (Markwith Decl., ¶ 2.) On May 24, 2023, due to plaintiff’s unavailability, the notice was amended, and her deposition was scheduled for July 12, 2023. (Id.) It was amended a second time on October 16, 2023, and set for December 5, 2023. (Id., Exh. A.) Plaintiff failed to appear on December 5, 2023. (Id., ¶ 4.) Defendant called Plaintiff and left a voicemail to inquire about the nonappearance, but she did not call back. (Id., ¶¶ 5-6.)

As Plaintiff was properly served with the notice of deposition, did not object under CCP section 2025.410, and failed to appear, the motion to compel Plaintiff to appear for deposition is GRANTED. Plaintiff Emma Castillo is ordered to appear for deposition within 30 days of this order.

Sanctions

If a motion under CCP section¿2025.450(a) 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. (CCP section¿2025.450(g)(1).)

As the motion to compel Plaintiff’s deposition is granted, Defendant’s request for sanctions is granted. Thus, the Court imposes sanctions against Plaintiff and in favor of Defendant, in the amount of $432 ($186 per hour, for 2 hours, plus $60 filing fee) to be paid within 30 days of this order. The statute does not authorize sanctions against counsel, and thus, the request for sanctions against Plaintiff’s former counsel is denied.