Judge: Stephen Morgan, Case: 21AVCV00015, Date: 2022-10-13 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

Case Number: 21AVCV00015    Hearing Date: October 13, 2022    Dept: A14

Background

This is a motor vehicle – personal injury action. Plaintiff Amber Marie Doyle (“Plaintiff”) alleges that on or around December 09, 2019, at or around West Avenue J-8, in the City of Lancaster, County of Los Angeles, State of California, Defendants Ryan Daniel Ferrone (“Ferrone”) and County of Los Angeles (“LAC” and collectively “Defendants”)’s actions were negligent and the legal cause of injuries to Plaintiff.

On January 08, 2021, Plaintiff filed her Complaint alleging one (1) cause of action for Motor Vehicle.

On November 30, 2021, LAC filed its Answer.

On August 09, 2022, LAC filed this Motion for Order Compelling Attendance of Plaintiff for Deposition.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The hearing is set for October 13, 2022. As such, an Opposition was due on September 30, 2022. Should an Opposition be filed, it is now untimely.

On October 07, 2022, LAC filed a Notice of Non-Opposition.

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Legal Standard

Standard for Compelling Deposition – “Any party may obtain discovery. . .by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Cal. Code Civ. Proc. § 2025.010.) “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Cal. Code Civ. Proc. § 2024.280(a).)

Cal. Code of Civil procedure section 2025.450(a) provides a mechanism by which to compel the deposition of a party. “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.”¿

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Meet and Confer Requirement – The motion must be accompanied by a good faith 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.”¿ (Cal. Code Civ. Proc. § 2025.450(b)(2).)¿This requirement has been met as counsel for LAC, George L. Mallory, Jr. (“Mallory, Jr.”) emailed Plaintiff’s counsel, Alexander Polyachenko (“Polyachenko”), informing Polyachenko that his office stated that the deposition was not put on calendar and requesting a new deposition date in two days. (Exh. F.) To date, Mallory, Jr. expresses that he has not received a response from Polyachenko. (Decl. Mallory, Jr., ¶ 9.)

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Discussion

Application – LAC seeks an order compelling Plaintiff’s deposition as (1) LAC noticed Plaintiff for a deposition on May 31, 2022 (Exh. A); (2) due to Plaintiff’s original counsel’s departure from the law firm, an alternative date of July 14, 2022 was requested by Plaintiff and noticed by Defendant (Exh. B); (3) Plaintiff’s counsel contacted defense counsel and requested the deposition be continued to July 26, 2022 and LAC complied and sent out a Second Amended Notice of Deposition on July 13, 2022 (Exh. C.). LAC presents that no objection to the July 26, 2022 deposition was served, that both Plaintiff and her counsel failed to appear for the scheduled deposition, and there has been no response to the request to reschedule Plaintiff’s deposition. (Decl. Mallory, Jr., ¶¶ 4-10.)

“An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.” (Cal. Code Civ. Proc. §2025.270.) The Second Amended Notice of Deposition was properly served.

Plaintiff does not present a reason for her non-appearance at the July 26, 2022 deposition.

As depositions are a statutorily authorized method of discovery and a litigant in a civil action has the right to take depositions, the Court GRANTS the Motion for Order Compelling Attendance of Plaintiff for Deposition. (See Cal. Code Civ. Proc. § 2025.010; Beverly Hills Nat. Bank & Trust Co. v. Superior Court (1961) 195 Cal.App.2d 861, 864–65; Clark v. Superior Court of San Francisco (1961) 190 Cal.App.2d 739, 742.)

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Sanctions

LAC requests sanctions in the amount of $2,087.35 [$9.00 filing fee + $998.35 Court Reporter’s Fee for transcript outlining Non-Appearance + 6 hrs @ $180.00/hr] for the time and fees expended on the deposition (non-appearance), the related motion, and potential time spent on the hearing.

“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 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.” (Cal. Code Civ. Proc. § 2025.450(g)(1).)

Here, there is no justification or circumstances presented to the Court that would make the imposition of the sanction unjust.

Accordingly, the Court imposes a sanction of $1,350.00 on Plaintiff and her counsel, jointly and severally.

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Conclusion

Defendant County of Los Angeles’ Motion for Order Compelling Attendance of Plaintiff for Deposition and for Monetary Sanctions is GRANTED.

A sanction of $1,350.00 is imposed on Plaintiff Amber Marie Doyle and her counsel, Alexander Polyachenko, jointly and severally.

Plaintiff Amber Marie Doyle is ordered to appear for her deposition within thirty (30) days of this court order.