SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) moves to compel the deposition of Plaintiff Eugel Nicoleau (“Plaintiff”). Defendant initially took Plaintiff’s deposition on June 20, 2023, but the deposition was suspended after several hours when Plaintiff became ill. The parties agreed to resume the deposition at a later date. Defense counsel avers that Plaintiff’s counsel has not responded to repeated inquiries for alternate dates. Defendant noticed Plaintiff’s resumed deposition for August 7, 2023. After receiving no response or objection to the deposition notice, Plaintiff did not appear on August 7, 2023. Later that day, defense counsel declares Plaintiff’s counsel called him about another issue, and defense counsel took the opportunity to attempt to meet and confer about Plaintiff’s failure to appear for his deposition. Plaintiff’s counsel offered to produce Plaintiff on August 11, 2023. However, defense counsel was not available on that date, and requested alternate dates. No alternate dates have been provided. Defense counsel declares that if Plaintiff appears for his deposition and defense counsel is compensated for the cost incurred in attending the August 7, 2023 deposition, that Defendant will take the instant motion off-calendar. 

Any opposition was due on or before September 26, 2023; none was filed. As this motion has not been taken off-calendar, the Court is under the assumption that the deposition has not moved forward.  

 

II. Motion to Compel Deposition 

CCP § 2025.450(a) provides, “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.”  CCP § 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under §2025.410. 

There is no evidence that Plaintiff’s counsel coordinated a new deposition date with defense counsel thereafter and no evidence that Plaintiff’s deposition has proceeded since the filing of the instant motion.  

Therefore, the motion to compel is GRANTED. (CCP § 2025.450(a).)  Plaintiff is ordered to appear for deposition at a date, time, and location to be noticed by Defendant.  Defendant must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service). 

 

III. Sanctions 

CCP § 2025.450(g)(1) requires the Court to impose sanctions unless it finds the deponent acted with substantial justification or there are circumstances that render imposition of sanctions unjust. Defendant requests sanctions of $3,458.45. A court has discretion to award sanctions that are “suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks” but they should not be punitive in nature or levied for the purposes of punishing an offending party. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.)¿ 

The Court awards one hour for preparing the motion and one hour for appearing at the hearing at the requested rate of $250 per hour, for a total attorney’s fees award of $500. The Court also awards the cost of the court reporter and affidavit of non-appearance for the August 7, 2023 deposition of $1,033.45. The Court declines to award any additional fees, especially for ambiguous fees that defense counsel “expects to incur.”  

Sanctions are imposed against Plaintiff and/or Plaintiff’s counsel, jointly and severally. Plaintiff and/or Plaintiff’s counsel are ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $1,533.45, within twenty (20) days.