Judge: Serena R. Murillo, Case: 22STCV19500, Date: 2022-09-13 Tentative Ruling

Case Number: 22STCV19500    Hearing Date: September 13, 2022    Dept: 29

Allstate Northbrook Indemnity Company v. Diane Rodriguez

Motion to Compel Attendance at Deposition and Request for Sanctions filed by Petitioner Allstate Northbrook Indemnity Company

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TENTATIVE 

Petitioner Allstate Northbrook Indemnity Company’s motion to compel Claimant’s deposition is GRANTED. Claimant Diane Rodriguez is ordered to appear for deposition within 30 days of this order. Petitioner’s request for sanctions is GRANTED. Claimant Diane Rodriguez is ordered to pay monetary sanctions to Petitioner in the amount of $461.65 within 30 days of this order.

Legal Standard 

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

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¿2025.450(b) provides:¿“A motion under subdivision (a)… 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, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿ (Id., § 2025.450(b).) 

Sanctions

If a motion under CCP section¿2025.450(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. (CCP section¿2025.450(g)(1).)

Discussion 

Petitioner argues that it has served Claimant with seven deposition notices requesting Claimant to attend and testify at deposition. Claimant has failed to attend the noticed depositions served on December 22, 2020, February 3, 2021, May 5, 2021, July 6, 2021, August 18, 2021, November 16, 2021, and December 29, 2021. (Arakelyan Decl., Exhs. A-C, E-H.) Each time, Claimant’s counsel canceled the deposition either a day or a few days before via telephone. (Id., ¶¶ 6, 9, 12, 15, 17, 19.) To date, Claimant has not appeared for her deposition.

Claimant, in opposition, argues that the motion was filed without meeting and conferring.

However, this argument is unavailing as Petitioner has made seven attempts over the course of nearly two years at taking Claimant’s deposition, yet Claimant has canceled each time. Moreover, the proper remedy was an objection under Code of Civil Procedure section 2025.410, which Claimant failed to do. Because Petitioner properly served its notices, Claimant failed to properly object, and there is no justification for cancelling seven times, the motion is GRANTED.  Claimant is ordered to appear for deposition within 30 days of this order.

As for monetary sanctions, Claimant has not provided any justification in failing to appear for her properly noticed depositions, arguing only that Petitioner failed to meet and confer. As such, Petitioner’s request for sanctions is granted. Claimant Diane Rodriguez is ordered to pay monetary sanctions to Petitioner in the amount of $461.65 ($200 an hour for 2 hours, plus $61.65 in filing fees) within 30 days of this order.

Conclusion 

Accordingly, Petitioner’s motion to compel Claimant’s deposition is GRANTED. Claimant Diane Rodriguez is ordered to appear for deposition within 30 days of this order. Petitioner’s request for sanctions is GRANTED. Claimant Diane Rodriguez is ordered to pay monetary sanctions to Petitioner in the amount of $461.65 ($200 an hour for 2 hours, plus $61.65 in filing fees) within 30 days of this order.

Moving party is ordered to give notice.