Judge: Steven A. Ellis, Case: 22STCV32473, Date: 2024-08-21 Tentative Ruling

Case Number: 22STCV32473    Hearing Date: August 21, 2024    Dept: 29

Boktor v. Hill
22STCV32473
Defendants’ Motion to Compel Deposition of Plaintiff

Tentative

The motion is granted.

The request for sanctions is granted in part.

Background

On October 4, 2022, Mina Boktor (“Plaintiff’) filed a complaint against Retzel Glenn Hill, Specialized Services Transportation Inc. (collectively “Defendants”), and Does 1 through 50 for negligence arising out of an automobile accident occurring on November 12, 2020.

Defendants filed their answers on November 9 and 16, 2023.

On July 24, 2024, Defendants filed this motion to compel the deposition of Plaintiff.  Defendants also seek sanctions.

On August 12, 2024, Plaintiff’s counsel filed a document labelled a declaration of non-opposition.  In the non-opposition, Plaintiff consents to the order compelling the deposition but opposes Defendants’ request for sanctions, arguing that Defendants did not properly meet and confer and did not schedule and complete an Informal Discovery Conference (IDC).  The Court notes that this non-opposition, which is in fact an opposition to the sanctions request, was not timely filed.

Defendants filed a reply on August 14.

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 2025.230 provides: “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested.  In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” 

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.

Section 2025.450, subdivision (a), provides:

“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.” 

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., 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

Defendants noticed Plaintiff’s deposition for April 17, 2024.  (Glass Decl., ¶ 2 & Exh. A.)  Plaintiff objected on the grounds that counsel was not contacted regarding the date and that the deposition should be conducted remotely rather than in person.  (Id., ¶ 3 & Exh. B.)  Defendants reached out to Plaintiff regarding scheduling, but Plaintiff did not respond.  (Id., ¶¶ 4-5 & Exhs. C-D.)

Defendants then noticed Plaintiff’s deposition for June 18, 2024.  (Id., ¶ 6 & Exh. E.)  Plaintiff did not object but emailed Plaintiff’s counsel at 4:39 p.m. on June 17 stating that the deposition could not go forward “due to a scheduling conflict.”  (Id., ¶¶ 7-8 & Exhs. F-G.)  Plaintiff did not appear, and Defendants took a certificate of non-appearance.  (Id., ¶ 17 & Exh. O.)

Counsel then discussed new dates for the deposition and settled on July 24.  (Id., ¶¶ 9-10 & Exhs. H-I.)  But counsel disagreed as to whether the deposition should be taken in the office of Plaintiff’s counsel or Defendants’ counsel. (Id., ¶¶ 11-12, 14 & Exhs. J-K, M)

Defendants noticed Plaintiff’s deposition for July 24, at the offices of Defendants’ counsel.  (Id., ¶ 13 & Exh. L.)  Plaintiff objected on the grounds that counsel was not contacted regarding the date and that the deposition should be conducted remotely rather than in person.  (Id., ¶ 15 & Exh. N.)

The Court finds that Defendants have satisfied all substantive and procedural requirements in connection with their motion.  Defendants noticed a deposition for June 18, 2024.  Plaintiff did not object and did not appear.  Defendants inquired about the nonappearance but the parties have not been able to resolve their disagreements about deposition scheduling.

The Court exercises its discretion to consider Plaintiff’s opposition to the motion, which Plaintiff labels as a “non-opposition.” 

First, Plaintiff contends that Defendants did not meet and confer adequately.  The Court has reviewed the record and finds that there was no failure to meet and confer.  Moreover, in connection with a motion under Code of Civil Procedure section 2025.450, it is sufficient for the moving party to inquire about the nonappearance, which Defendants plainly did.

Second, Plaintiff contends that Defendants did not satisfy the requirement for an IDC.  Under the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts, an IDC is required for a motion to compel further discovery responses; there is no IDC requirement for a motion to compel a deposition.

Turning now to sanctions, the Court grants in part Defendants’ request for monetary sanctions.  Plaintiff contends that sanctions may be awarded only against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel – and that since Plaintiff has filed only a non-opposition, sanctions cannot be awarded.

It is true, of course, that a number of statutes within the Civil Discovery Act authorize sanctions only against a party, person, or attorney “who unsuccessfully makes or opposes” a motion to compel.  (See, e.g., Code Civ. Proc., § 2030.290, subd. (c) & § 2031.300, subd. (c).)  But this motion is brought under section 2025.450, subdivision (a).  And the applicable sanctions provision, contained in subdivision (g)(1), does not limit the authority to award sanctions to those who unsuccessfully make or oppose a motion to compel.  To the contrary, subdivision (g)(1) provides:

“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.” 

Accordingly, even if the Court accepted the argument that Plaintiff’s non-opposition is not an opposition in substance (which the Court does not), sanctions are still authorized under section 2025.450, subdivision (g)(1), in these circumstances.

The Court finds that a motion under subdivision (a) has been granted, that Plaintiff and counsel have not acted with substantial justification, and that other circumstances do not make the imposition of the sanction unjust.

Based on the relatively straightforward nature of a motion to compel a deposition of a party, the Court sets sanctions in the amount of $1,604.50, calculated based on 2.5 hours of attorney time, multiplied by counsel’s reasonable billing rate of $295 per hour, plus $867 in costs.  (See Glass Decl., ¶¶ 17-20 & Exh. O.)

Sanctions are awarded against Plaintiff.  No sanctions are requested against counsel.

Conclusion

The Court GRANTS Defendants’ motion to compel the deposition of Plaintiff.

The Court ORDERS Plaintiff Mina Boktor to appear for deposition and answer questions under oath on September __, 2024, at 10:00 am, at the offices of Harrington Foxx Dubrow & Canter LLP, 535 North Brand Boulevard, Suite 800, Glendale, California 91203.

The Court ORDERS Plaintiff Mina Boktor pay $1,604.50 in monetary sanctions under the Civil Discovery Act to Defendants within 30 days of notice of this order.

Moving party is ORDERED to give notice.