TENTATIVE RULING

Calendar: 8

Date: 1/10/2025

Case No:         23 GDCV00948 Trial Date: September 15, 2025

Case Name:    Simonian v. Ross Dress for Less, et al. 

MOTION TO COMPEL DEPOSITION

Moving Party:             Defendant Ross Dress for Less, Inc.     

Responding Party: Plaintiff Rita Simonian  (No Opposition) 

Name of Deponent: Rita Simonian     

Status of Deponent: Plaintiff (party)

RELIEF REQUESTED BY MOVING PARTY:

Order compelling plaintiff Rita Simonian to appear and testify at deposition.   

CHRONOLOGY

Date NOTICE OF DEPOSITION served (CCP § 2031(b)):   July 23, 2024  

Date of Deposition (10 day lapse):    August 8, 2024   ok

Date Motion Served: September 24, 2024     

 

FACTUAL BACKGROUND:

Plaintiff Rita Simonian alleges that in May of 2021, plaintiff sustained injuries as a result of a slip and fall while plaintiff was shopping at premises in La Canada Flintridge which were owned, controlled or maintained by defendant Ross Dress for Less.  Plaintiff alleges that she slipped and fell on a slippery floor when exiting the dressing room, was unable to catch herself, and suffered severe injuries. 

The complaint alleges causes of action for premises liability and negligence.

ANALYSIS:

CCP section 2025.450 (a) provides that "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... the party giving the notice may move for an order compelling the deponent’s attendance and testimony..."

In this case, plaintiff was served with a notice.  [Diehl Decl., para. 11, Ex. E].  Plaintiff evidently failed to object under Section 2025.410, and failed to appear at the scheduled examination. [Diehl Decl., para. 12]. Plaintiff has therefore waived any objections and defendant is entitled to an order compelling attendance.  Defendant has filed a declaration confirming that no opposition has been served or received.  The declaration indicates that the plaintiff’s counsel has agreed to produce plaintiff for deposition on January 10, 2025, after the hearing on this motion.  [Diehl Decl., para. 2]. The motion is granted. Plaintiff is ordered to appear at deposition and give testimony. 

Sanctions

 

Under CCP section 2025.450 (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 that party and against the deponent...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.”   Section 2023.010 (d) provides that misuse of the discovery process includes failure to submit to an authorized method of discovery.  CCP section 2023.030(a) authorizes the imposition of monetary sanctions against a party for misuse of the discovery processes.  

Plaintiff has failed to file timely written opposition to this motion and has failed to show that plaintiff has acted with substantial justification in repeatedly avoiding scheduling a deposition date, and failing to appear on the noticed date.  Defendant has filed a declaration confirming that no opposition has been served.   The sanctions requested are $1,428.00.  The sanctions sought include 4 hours at $180 per hour to prepare a reply, which evidently consists of a brief two paragraph declaration, and does not appear to have taken long to prepare.  The sanctions award will be adjusted accordingly as follows: 3 hours drafting motion plus 1 hour to attend hearing remotely for a total of 4 hours. Attorney time at $180.00 per hour is $720.00 total attorney fees.

RULING:

[No Opposition]

Defendant’s UNOPPOSED Motion to Compel Plaintiff’s Deposition is GRANTED.  Plaintiff Rita Simonian is ordered to appear for deposition and to give testimony no later than February 7, 2025 at the law office of Plaintiffs attorney. 

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the

totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s

fees and costs incurred for the work performed in connection with the pending motion is $720.00

(4 hours @ $180/hour) [7.6 hours requested]) plus costs of $60 in filing fees [Amount Requested $1,428.00], which sum is to be awarded in favor of defendant Ross Dress for Less, Inc. and against plaintiff Rita Simonian, and plaintiff’s attorney of record, jointly and severally, payable within 30 days.  CCP §§ 2025.450 (g)(1), 2023.010 (d) and 2023.030 (a). 

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

AUDIO OR VIDEO APPEARANCES

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