Judge: Michael E. Whitaker, Case: 19STCV36363, Date: 2022-12-16 Tentative Ruling

Case Number: 19STCV36363    Hearing Date: December 16, 2022    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

            Plaintiff John M.G. Doe, by and through his Guardian Ad Litem, Artur Gazaryan (Plaintiff) moves the Court to compel the appearance of Defendant Darla Bowman (Bowman) for deposition.  Plaintiff requests monetary sanctions.  Defendants Los Angeles Unified School District and Darla Bowman (collectively, Defendants) oppose the motion.   

ANALYSIS

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent’s attendance and testimony. (Code Civ. Proc., § 2025.450, subd. (a).)

Here, on October 12, 2022, Plaintiff served the subject, third-amended, deposition notice on Bowman.  Plaintiff noticed the deposition for Bowman for November 3, 2022.  Defendant failed to appear for the deposition.  As of the date of filing of this motion, Defendant has not appeared for deposition.

            In opposition, Defendants argue that Plaintiff’s motion to compel deposition is unnecessary because Bowman has agreed to be deposed and has provided Plaintiff with two dates that she is available for deposition, December 27, 2022, and January 3, 2023.  However, despite Bowman’s promises that she will appear for deposition on the proposed dates, Plaintiff is still entitled to an order compelling Bowman’s deposition based on her failure to appear to the properly noticed deposition on November 3, 2022.

Plaintiff seeks monetary sanctions in connection with the motion.  Defendants advance two arguments in opposition to Plaintiff’s request for monetary sanctions.  First, Defendant argues that the instant motion is unwarranted because Defendants have provided two dates that Bowman is available for deposition in the near future.  However, the Court finds this argument unpersuasive as Bowman’s attendance is not guaranteed based only on Defendant counsel’s assurances.  Second, Defendants argue there is substantial justification for Bowman’s failure to attend her noticed deposition on November 3, 2022, based on her serious medical condition.  However, while Defendants’ counsel, Kristina P. Stephenson-Cheang, indicates that Bowman was not able to attend her June 7, 2021 and February 15, 2022 depositions due to her medical condition, she does not specifically indicate that Bowman was not able to attend her November 3, 2022 deposition because of her health.  (See Declaration of Kristina P. Stephenson-Cheang, ¶¶ 2, 3, 4, 5.)  Further, in the email exchange between Plaintiff’s counsel and Defendants’ counsel, Defendants’ counsel indicated that Bowman was not able to attend deposition before December 16, 2022, not because of her medical condition, but because their “calendars are filled for most of December.”  (See Declaration of Kristina P. Stephenson-Cheang, Exhibit B.)  As such, the Court finds Defendants have failed to set forth a substantial justification for the delay of Bowman’s deposition. 

Accordingly, the Court finds Bowman’s failure to participate in discovery to be an abuse of the discovery process. (See Code Civ. Proc., §§ 2023.010, subd. (d), 2025.450, subd. (g)(1).) Accordingly, the Court will impose monetary sanctions against Defendants’ counsel of record, Gutierrez, Preciado & House, LLP, in the amount of $560, which represents two hours of attorney time to prepare the motion and attend the hearing at $250 per hour; plus, the motion filing fee of $60.

CONCLUSION AND ORDER

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

            Further, the Court orders Defendants’ counsel of record, Gutierrez, Preciado & House, LLP, to pay monetary sanctions in the amount of $560 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.

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