Judge Steven A. Ellis, Case Number: 21STCV36747, Date: 2024-02-22 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV36747, Date: 2024-02-22 Tentative Ruling

Case Number: 21STCV36747 Hearing Date: February 22, 2024 Dept: 29

Plaintiff’s Motion to Compel the Deposition of Defendant Michael English

Plaintiff’s Motion to Compel the Deposition of Defendant City of Culver City’s Employee Joseph Betts

Tentative

The motions are granted.

The requests for sanctions are granted in part.

Background

This case arises out of an incident on November 6, 2020, near the intersection of Washington Boulevard and Jean Place in Culver City. On October 6, 2021, Plaintiff Janet Baker (“Plaintiff”) filed the Complaint in this action against Defendants City of Culver City (“City”), Michael English (“English”), and Does 1 through 25 asserting one cause of action for motor vehicle negligence. On December 16, 2021, Defendants City and English (collectively, “Defendants”) filed their Answer to the Complaint.

Currently before the Court are two motions to compel depositions.

Plaintiff initially noticed the depositions of Defendant English and City employee Joseph Betts in October 2022, with both depositions scheduled for December 12, 2022. (Ramon Decls., ¶ 3 & Exh. A.) Defendants objected to the date, and there were subsequent deposition notices issued, as well as inconclusive correspondence between counsel regarding deposition scheduling, for much of 2023. (Id., ¶¶ 4-19 & Exhs. B-R.) On September 27, 2023, Plaintiff noticed the depositions of English and Betts for October 27. (Id., ¶ 20 & Exh. S.) Defendants objected to the date once again. (Id., ¶ 21 & Exh. T.) Neither deponent appeared; Plaintiff followed up about the non-appearances and alternative dates for the deposition, but Defendants never provided alternate deposition dates. (Id., ¶¶ 23-25 & Exhs. V-X.)

On November 14, 2023, Plaintiff filed these two motions to compel the depositions of English and Betts. Plaintiff also seeks sanctions in each motion.

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).)

Such a 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).) “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124. See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).)

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

Both motions to compel are GRANTED. Plaintiff repeatedly noticed the depositions of Defendant English and City’s employee Betts and communicated with defense counsel regarding deposition dates. (Ramon Decls., ¶¶ 3-19 & Exhs. A-R.) After approximately a year, when still no dates had been provided by defense counsel, Plaintiff noticed the depositions for October 27, and neither deponent appeared. (Id., ¶ 20 & Exhs. S.) Plaintiff followed up with defense counsel about the non-appearances and alternative deposition dates, but no agreement was reached. (Id., ¶¶ 23-25 & Exhs. V-X.)

Defendants did serve timely objections to the October 27 deposition, but the only objection was that the deposition dates were “selected unilaterally by plaintiff’s counsel.” (Id., ¶ 21 & Exhs. T.) Given the year-long attempt to schedule these depositions, and Defendants’ to offer a firm deposition date through this long period, Defendants’ objections are OVERRULED.

Plaintiffs’ requests for sanctions in these two motions are also GRANTED in part. Given the relatively straightforward nature of a motion to compel a deposition, and the economies of scale associated with preparing multiple discovery motions, the Court sets sanctions on each motion in the amount of $935, calculated based on 2.5 hours of attorney time per motion, multiplied by counsel’s reasonable billing rate of $350 per hour, plus a $60 filing fee. (Ramon Decls., ¶ 28.)

Conclusion

The Court GRANTS the motions to compel.

The Court ORDERS Defendant English to appear for his deposition on a date to be arranged by counsel that is no later than 30 days after notice of this ruling.

The Court ORDERS Defendant City to produce its employee Joseph Betts for his deposition on a date to be arranged by counsel that is no later than 30 days after notice of this ruling.

The Court GRANTS in part Plaintiff’s requests for sanctions.

The Court ORDERS Defendant English and counsel of record McCune & Harber, LLP, jointly and severally, to pay monetary sanctions to Plaintiff under the Civil Discovery Act in the amount of $935 within 30 days of notice of this ruling.

The Court ORDERS Defendant City and counsel of record McCune & Harber, LLP, jointly and severally, to pay monetary sanctions to Plaintiff under the Civil Discovery Act in the amount of $935 within 30 days of notice of this ruling.

Moving party to give notice.