Judge: Theodore R. Howard, Case: 21-1210269, Date: 2023-07-27 Tentative Ruling

Defendant Hillstone Restaurant Group’s motion for terminating sanctions, or issue and evidentiary sanctions, and monetary sanctions against Plaintiff Amanda Hayes is DENIED.

Code Civ. Proc., § 2025.450(h) provides that if a party fails to obey an order compelling attendance at a deposition, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction, and/or monetary sanctions.

Here, Defendant seeks sanctions on the ground that Plaintiff allegedly failed to obey a court order compelling her attendance at deposition.  However, the Court’s files do not reflect that any such order was entered.  The 12/08/22 minute order regarding Defendant’s motion to compel Plaintiff’s deposition states: “Counsel for defendant informs the Court that they withdraw the Motions but request monetary sanctions.”  The Court then confirmed and modified the tentative ruling and deemed the motion to compel Plaintiff’s deposition moot and imposed monetary sanctions of $685 against Plaintiff for said motion.  (See ROA 130.)  The order does not reflect that Defendant’s motion was granted and that Plaintiff was ordered to appear for deposition within 30 days, as Defendant claims.

On 12/09/22, Defendant filed a notice of ruling regarding the motion to compel deposition, wherein Defendant inaccurately states that the Court granted the motion, and that Plaintiff was ordered to appear for deposition within 30 days of the hearing.  (See ROA 127.)  However, as noted above, the Minute Order for said motion does not show that such order was entered.

Defendant also has not shown that the failure to appear at deposition reflects a pattern of willful discovery abuse, such that terminating, issue, or evidentiary sanctions might be appropriate.  The motion shows only that the failure to appear at deposition was because Plaintiff’s counsel had lost contact with Plaintiff.  Defendant has not presented evidence to show that the failure to appear was due to any willful act on the part of Plaintiff.  In addition, although various motions to compel written discovery responses were filed by Defendant and granted (see ROA 92, 97) the motion suggests that Plaintiff has indeed provided these discovery responses.  (See Motion at 6:16-18 [referring to Plaintiff’s “failure to serve discovery responses until ordered to do so”].)

Defendant does not reference any other court order that Plaintiff allegedly disobeyed.  Because Defendant has not shown either any discovery order has been disobeyed, or that the failure to appear at deposition reflects a pattern of willful discovery abuse, the motion is DENIED.

Counsel for Moving Party is to give notice.