Judge: Steven A. Ellis, Case: 21STCV00910, Date: 2024-02-29 Tentative Ruling
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Case Number: 21STCV00910 Hearing Date: February 29, 2024 Dept: 29
Defendant’s Motion
to Compel Deposition of Plaintiff
Tentative
The motion is
granted.
The request for
sanctions is granted in part.
Background
On January 8, 2021, Plaintiff Bethany
Estrada (“Plaintiff”) filed a complaint
against Defendant Richard Estrada (“Defendant”) and Does 1 through 10 for
general negligence and motor vehicle negligence. The complaint alleges that on
January 19, 2021, Plaintiff was sitting in the right front passenger seat of
the motor vehicle owned and driven by Defendant when Defendant suddenly and
without warning, negligently veered right, off US-395, across the asphalt
shoulder, down an embankment, striking a metal fence.
On October 12, 2023, Defendant served
Plaintiff with a notice of deposition, setting her deposition for October 23,
2023. (Mendoza Decl., ¶ 3 & Exh.
A.) On October 17, Defendant advised
that the deposition needed to be rescheduled, and after an exchange of emails,
the deposition was renoticed for November 29, 2023. (Id., ¶¶ 4-5 & Exh. C.)
On the eve of the deposition, Plaintiff’s
counsel advised that Plaintiff was not feeling well. After an exchange of emails, the deposition
was renoticed for December 20, 2023. (Id.,
¶¶ 6-7 & Exh. E.)
On the eve of the deposition, Plaintiff’s
counsel advised that the deposition needed to be rescheduled because one of
Plaintiff’s attorneys had contracted COVID-19.
(Id., ¶ 8 & Exh. F.)
On December 28, 2023, Defendant filed this
motion to compel Plaintiff’s deposition.
No opposition has been filed.
Legal Standard
“Any party may obtain discovery … by
taking in California the oral deposition of any person, including any party to
the action.” (Code Civ. Proc., §
2025.010.) Code of Civil Procedure
sections 2025.210 through 2025.280 provide the requirements for (among other
things) what must be included in a deposition notice, when and where
depositions may be taken, and how and when the notice must be served.
“The service of a deposition notice …
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.”
(Id., § 2025.280, subd. (a).)
Section 2025.410, subdivision (a),
requires any party to serve a written objection at least three days before the
deposition if the party contends that a deposition notice does not comply with
the provisions of sections 2025.210 through 2025.280.
“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.” (Id., §
2025.450, subd. (a).) Any such motion to compel must show good
cause for the production of documents and, when a deponent has failed to
appear, the motion must be accompanied “by a declaration stating that the
petitioner has contacted the deponent to inquire about the nonappearance.” (Id., § 2025.450, subd. (b).)
When a motion to compel 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.”
(Id., § 2025.450, subd. (g)(1).)
In Chapter 7 of the Civil Discovery Act, section
2023.010, subdivision (d), defines “[m]isuses of the discovery process” to
include “[f]ailing to respond to or to submit to an authorized method of
discovery.” Where a party or attorney
has engaged in misuse of the discovery process, the court may impose a monetary
sanction in the amount of “the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct.” (Id., § 2023.030, subd. (a).)
Discussion
After
two prior attempts to schedule Plaintiff’s deposition, Defendant served a
notice of Plaintiff’s deposition scheduled for December 20, 2023. (Mendoza
Decl., ¶ 7 & Exh. E.) Plaintiff did
not serve any objection, but, on the day before the deposition, Plaintiff’s
counsel advised they needed to reschedule Plaintiff’s deposition, because one
of their attorneys had contracted COVID-19. (Id. at ¶ 8, Exh. F.)
The
motion to compel Plaintiff’s deposition is granted. Plaintiff failed to appear for her properly
noticed deposition without service of a timely objection.
The request for sanction is also
granted in part. Plaintiff has not
opposed the motion, and there is no evidence in the record that the conduct of
Plaintiff and her attorney was substantially justified or that the imposition
of sanctions would be unjust. Given the
relatively straightforward nature of a motion to compel a deposition, the Court
sents sanctions in the amount of $420, calculated based on two hours of
attorney time, multiplied by counsel’s reasonable billing rate of $180 per
hour, plus a $60 filing fee. (Mendoza
Decl., ¶ 10.)
Conclusion
The
Court GRANTS the motion to compel Plaintiff’s deposition.
The Court ORDERS Plaintiff to attend her
deposition on a date to be arranged by counsel that is no later than 21 days
after notice.
The Court GRANTS Defendant’s request for
sanctions.
The Court ORDERS Plaintiff and counsel of
record Ellis & Bakh, jointly and severally, to pay Defendant monetary
sanctions under the Civil Discovery Act in the amount of $420 within 30 days of
notice.
Moving party is ordered to give notice.