Judge: Steven A. Ellis, Case: 22STCV01130, Date: 2024-01-30 Tentative Ruling

Case Number: 22STCV01130    Hearing Date: January 30, 2024    Dept: 29

Motions to Compel the Deposition of David R. Main, D.C., and Dejanae Zelaya filed by Plaintiff Deshawnbai Davis.

Tentative

The Court GRANTS Plaintiff’s motion to compel the deposition of Defendant Dejanae Zelaya.

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

The Court DENIES without prejudice Plaintiff’s motion to compel the deposition of David T. Main, D.C.

Background

On January 11, 2022, Deshawnbai Davis (“Plaintiff”) filed the Complaint in this action, which arises out of an alleged motor vehicle accident on September 12, 2021. In the Complaint, Plaintiff asserts one cause of action for negligence against Defendants Los Angeles County Metropolitan Transportation Authority (“MTA”), Dejanae Zelaya (“Zelaya”), and Does 1 through 50.

MTA filed its Answer to the Complaint on April 4, 2022.  Zelaya filed her Answer to the Complaint on December 12, 2022.

Two motions regarding depositions are currently pending before the Court.

First, on July 24, 2023, Plaintiff noticed Zelaya’s deposition for August 17, 2023. On August 15, 2023, Defendant sent an email stating she could not appear. On September 8, 2023, Plaintiff noticed the deposition again, this time for September 25, 2023. On September 21, 2023, Defendant sent an objection to the deposition.  On September 25, 2023, Plaintiff served a third notice, this one setting the deposition for October 17, 2023. Zelaya did not appear, and a certificate of non-appearance was taken.

On October 18, 2023, Plaintiff filed a motion to compel the deposition of Zelaya.  Zelaya filed her opposition on January 3, and Plaintiff filed the reply on January 23.

Second, on July 28, 2023, Plaintiff served non-party David T. Main, D.C. (“Mann”) with a deposition subpoena, setting the deposition for August 16, 2023. On August 15, 2023, Mann stated he could not attend. On October 6, 2023, Plaintiff served Mann with a second deposition subpoena, this time setting the deposition for October 16, 2023. Mann did not appear, and a certificate of non-appearance was taken.

On October 18, 2023, Plaintiff filed a motion to compel the deposition of David T. Main, D.C. No opposition was filed. Plaintiff filed a reply on January 23, 2024.

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).)   

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

Deposition of Defendant Zelaya

Defendant Zelaya was properly served with a deposition notice and failed to appear.  (Lee Decl., ¶¶ 2-9.) Zelaya raises various issues in her opposition, but none has any merit.  Plaintiff need not show a “need” to depose a party.  Hypothetical disputes about potential questions that might be asked at the deposition do not excuse a failure to appear.  Nor does a dispute regarding service of other discovery (not the deposition notice at issue).

Zelaya is a named defendant who has appeared in this action. Under the Civil Discovery Act, she has an obligation to appear for her properly noticed deposition. Accordingly, Plaintiff’s motion is GRANTED.

Plaintiff’s motion for sanctions is GRANTED in part. First, no sanctions will be imposed on counsel. The evidence in the record indicates that counsel has diligently attempted to secure the cooperation of Zelaya, who has refused. (Thomas Decl., ¶¶ 7-9.) The misuse of the discovery process was committed by Zelaya, not her counsel, and it would be unjust under these circumstances to impose sanctions on counsel. Second, given the relatively straightforward nature of a motion to compel a party deposition, the Court will set sanctions in the amount of $660, calculated as three hours of attorney time, multiplied by counsel’s reasonable billing rate of $200 per hour, plus the filing fee.  (See Lee Decl., ¶ 10.)

Deposition of Non-Party Main

Non-party witness Mann was personally served with a deposition subpoena and failed to appear.  (Lee Decl., ¶¶ 2-7.) Under California Rules of Court, rule 3.1346, however, Plaintiff was required to effect personal service of the motion to compel on him (unless he agreed to mail or electronic service). No proof of personal service was filed in connection with this motion.

Accordingly, the motion to compel non-party Main to appear for his deposition is DENIED without prejudice.

Conclusion

The Court GRANTS Plaintiff’s motion to compel the deposition of Defendant Dejanae Zelaya.

The Court ORDERS Defendant Zelaya to appear for her deposition on a date to be arranged by counsel that is within 30 days of notice of the ruling.

The Court GRANTS in part Plaintiff’s request for sanctions against Zelaya and DENIES Plaintiff’s request for sanctions against Zelaya’s counsel.

The Court ORDERS Defendant Zelaya to pay monetary sanctions under the Civil Discovery Act in the amount of $660 to Plaintiff within 30 days of notice of the ruling.

The Court further ADMONISHES Defendant Zelaya that further violations of her obligations under the Civil Discovery Act, or violations of court orders regarding discovery, may lead to further and escalating sanctions, up to and including terminating sanctions.

The Court DENIES without prejudice Plaintiff’s motion to compel the deposition of David T. Main, D.C.

Moving party is ORDERED to give notice.