Judge Serena R. Murillo, Case 21STCV13005 2023-03-06 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV13005, Date: 2023-03-06 Tentative Ruling

Case Number: 21STCV13005 Hearing Date: March 6, 2023 Dept: 29

TENTATIVE

Accordingly, Plaintiff’s motion to compel the deposition of Defendant Obey is GRANTED. Defendant James Brian Obey is ordered to appear for deposition within 30 days of this order. Plaintiff’s request for sanctions is GRANTED. Defendant James Brian Obey is ordered to pay monetary sanctions in the amount of $1,575.86 within 30 days of this order.

Legal Standard

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 2025.410(a) provides: “Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”¿¿(Code Civ. Proc., § 2025.410(a).)¿

CCP¿section¿2025.450(b) provides:¿“The motion 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, a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿¿ (Id., § 2025.450(b).)¿

CCP¿section¿2025.450(c) provides, “(1) If a motion under subdivision (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.”¿ (Id., § 2025.450(c).)¿

CCP section 2023.030(a) provides that¿“[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . .¿If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the¿sanction unjust.”¿¿Failing to respond¿or to submit to an authorized method of discovery is a misuse of the discovery process.¿ (Id.,¿§ 2023.010(d).)¿

Discussion

Plaintiff has noticed the deposition of Defendant Obey on March 7, 2022, July 28, 2022, December 23, 2022, January 23, 2023, and February 8, 2023. (Kramer Decl. ¶ 3, Ex. A.) Defendant has failed to appear for each of these properly noticed depositions. (Id.)

Plaintiff has discussed with defense counsel the nonappearance of Defendant Obey, and is aware that defense counsel has been unable to communicate with Obey. (Kramer Decl. ¶ 5.) However, Plaintiff argues that due to the impending trial date, Plaintiff cannot continue to wait to allow defense counsel to contact Obey.

Plaintiff argues that Defendant Obey’s deposition is necessary because Obey was operating the truck that collided with Plaintiff’s vehicle, and his knowledge about the accident is not available through any other source.

In opposition, Defendants state that they do not dispute Plaintiff’s right to take the deposition of Obey, but state that they have repeatedly and unsuccessfully attempted to contact Obey and have been unsuccessful. Defendants state that they have now obtained an investigation firm.

The court grants the motion to compel the deposition of Defendant Obey. Although the court is sympathetic to defense counsel’s difficulties locating Defendant, the motion to compel should be granted when a party fails to appear for a properly noticed deposition. There is no evidence that Defendants properly objected to these noticed depositions. Thus, the motion to compel is granted.

Plaintiff requests reasonable attorney fees and costs in the amount of $2,500 against Defendant Obey, not Defense counsel. This amount consists of five hours at $500 per hour. (Kramer Decl. ¶ 10.) Defendant argues that this amount is excessive because Defendant informed Plaintiff’s counsel prior to the January 23, 2023 and February 8, 2023 depositions that the depositions could not go forward because they were unable to contact Obey. They argue that it would be unjust to impose sanctions on Obey if he never received communications informing him of his noticed depositions.

However, monetary sanctions may be imposed against a deponent party even if his or her failure to appear was inadvertent. It is enough that the deponent “fails to appear for examination.” (Code Civ. Proc. § 2025.450(a).) If the party properly asks for monetary sanctions, the court “shall” award them unless the prevailing party failed to make reasonable efforts to resolve the issues informally or provides a reasoning showing substantial justification. (Id.) The phrase “substantial justification” has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact. (Diepenbrock v. Brown (2012) 208 Cal.App.4th 743, 747-748.) Defendants provide no evidence to show that the failure to get into contact with deponent is “substantial justification.”

However, the court declines to award costs in the amount of $952.20 for the non-appearance at the February 8, 2023 deposition as Defendants state that they informed Plaintiff on February 1, 2023 that the deposition was not going forward. Plaintiff does not dispute that Defendants informed them about this. Thus, the incurrence of this non-appearance cost appears to be unreasonable.

Thus, the court awards sanctions in a reduced amount of $1,500.00, plus the filing fee and costs of $75.86.

Conclusion

Moving party is ordered to give notice.