Judge: Michael E. Whitaker, Case: 19STCV28694, Date: 2023-01-30 Tentative Ruling

Case Number: 19STCV28694    Hearing Date: January 30, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Defendant Melissa Nichole Meddock (Defendant) moves the Court to compel the appearance of Plaintiff Margarita Kazarian (Plaintiff) for deposition and produce documents requested in the deposition notice.  Defendant requests monetary sanctions in connection with the motion.  Plaintiff has not filed an opposition to the motion.

ANALYSIS

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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).)

Here, on October 31, 2022, Defendant served the subject deposition notice on Plaintiff.  Defendant noticed the deposition of Plaintiff for November 21, 2022. 

On November 16, 2021, Plaintiff served an objection to the subject deposition notice stating, “Responding Party and her counsel are not available for Plaintiff’s deposition on November 21, 2022.”  (Declaration of Matthew J. Vallejo, ¶ 4, Exhibit B.)  This is not a valid objection.  Service of a proper deposition notice obligates a party or party-affiliated witness to attend and testify, without necessity of subpoena.  (Code Civ. Proc., §¿2025.280, subd. (a).)  An attorney’s notice of unavailability has no legal effect and does not entitle anyone to a continuance.  (See Carl v. Superior Court (2007) 157 Cal.App.4th 73, 75.) 

On November 17, 2021 Defendant’s counsel spoke with Plaintiff’s counsel who confirmed Plaintiff would not be appearing at the deposition.  (Declaration of Matthew J. Vallejo, ¶ 5.)  As of the date of filing of this motion, Plaintiff has not appeared for deposition. 

Concerning Defendant’s requests to compel Plaintiff to produce documents (Nos. 1-6) included in the subject deposition notice, Defendant argues that Plaintiff’s objections are unmeritorious.   The Court finds that the non-privilege related objections to be unsound, and Defendant has set forth good cause for the production of responsive documents.  (See Code Civ. Proc., § 2025.450, subd. (b)(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].)  Thus, the Court will order Plaintiff to produce all responsive, non-privileged documents at the deposition.  If Plaintiff withholds any responsive documents based upon a privilege, Plaintiff shall prepare and serve a privilege log at the deposition.  (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1125 [“The purpose of a privilege log is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production”]   [cleaned up].) 

Defendant seeks monetary sanctions in connection with the motion. The Court finds Plaintiff’s failure to appear for deposition and to produce responsive, non-privileged documents to be an abuse of the discovery process, warranting monetary sanctions. (See Code Civ. Proc., §§ 2023.010, subd. (d), 2025.450, subd. (g)(1).) Accordingly, the Court will impose monetary sanctions against Plaintiff, in the amount of $410, which represents two hours of attorney time to prepare the motion and attend the hearing at $175 per hour, plus the motion filing fee of $60[1].

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to compel Plaintiff to appear for deposition per Code of Civil Procedure section 2025.450, and orders Plaintiff to appear for deposition within 30 days of notice of the Court’s order, unless Defendant stipulates otherwise.

Further, the Court orders Plaintiff to produce all responsive, non-privileged documents at the deposition in response to requests for production Nos. 1-6.  If Plaintiff withholds any responsive documents based upon a privilege, Plaintiff shall prepare and serve a privilege log at the deposition. 

Further, the Court orders Plaintiff to pay monetary sanctions in the amount of $410 to Defendant, by and through counsel for Defendant, within 30 days of notice of the Court’s orders.

Defendant shall provide notice of the Court’s orders and file a proof of service of such.