2016-00197078-CU-BC

Michelle Daniliuc vs. (GEICO)

Nature of Proceeding: Motion to Compel Plaintiff to Comply with Deposition Notice and for

Filed By: Kenna, Glenn M.

Defendant Government Employees Insurance Company’s (GEICO) motion for an order compelling Plaintiff Michelle Danuliuc (Michelle) to comply with deposition notice by appearing for deposition and producing records at that time is GRANTED.

GEICO noticed Michelle’s deposition for 2/18/18. (See Kenna Decl., Exh. A.) Michelle’s counsel emailed GEICO’s counsel on 2/08/18 and proposed stipulating to Michelle’s deposition later in February 2018. (Id., Exh. B.) Michelle’s counsel sent GEICO’s counsel a second email communication on 2/09/18 and objected that the

deposition had been unilaterally set on a date on which Michelle was not available. ( Id., Exh. C.) On 2/12/18, GEICO’s counsel issued an amended notice for Michelle’s deposition to take place on the agreed-upon date of 2/25/18. (See id., ¶ 5 and Exh. D.)

On 2/25/18, Michelle’s counsel informed GEICO’s counsel that Michelle had divorced Co-Plaintiff Dorin Danuliuc, and that he (GEICO’s counsel) had lost contact with Michelle. (Kenna Decl., ¶ 6.) Michelle’s counsel informed GEICO’s counsel that Michelle would not be present for the deposition. GEICO’s counsel evidently proceeded with the deposition anyway, and Michelle did not appear. Nor were any documents produced pursuant to requests in the amended deposition notice. GEICO’s counsel attempted to meet and confer about securing Michelle’s deposition, but Michelle’s counsel reiterated that he could not produce her. (Id., ¶¶ 8-9 and Exhs. E-F.)

This motion followed. Trial is set to commence on 4/02/18. The motion was short-set as a result.

In an opposition ostensibly filed on Michelle’s behalf, Michelle’s counsel asserts that at the time he scheduled Michelle’s deposition, he had not learned about his clients’ divorce or the fact that Michelle was unavailable. Michelle’s counsel faults GEICO for delaying in seeking Michelle’s deposition until late in the case. On the other hand, he offers to stipulate that Michelle will not testify at trial, that the trial should be continued to locate her, and/or that he will withdraw from representing her. Counsel also asserts there is no objection to an evidentiary sanction barring Michelle from testifying at trial.

Michelle’s counsel does object to GEICO’s request for a monetary sanction against him jointly and severally with Michelle. Perhaps in response to counsel’s objection, GEICO has requested judicial notice that the Danuliucs were in a marital dissolution action in this county in March 2016. (See RJN, Exh. A.) The judgment of dissolution is on appeal and has been fully briefed. (Id., Exh. B.) Michelle’s current counsel, however, does not appear to have represented either party in the trial court or in the appeal.

The motion before this court is for an order compelling Michelle to appear for deposition in Roseville at 3:00 p.m. on 3/16/18 and produce documents requested in the amended deposition notice executed on 2/12/18. (See the Notice of Motion for the street address.) Although it appears unlikely Michelle will appear, the motion is granted.

Pursuant to CCP § 2025.450(g), the court imposes a monetary sanction against Michelle in the amount of $2,295 (8.7 hrs @ reasonable rate of $250/hr + $120 in filing fees). Michelle shall pay the sanction no later than 4/01/18. GEICO may lodge with the court a formal order awarding sanctions that may be enforced as a judgment. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

Although there is some question about how Michelle’s counsel represented Michelle’s interests without having any contact with her for perhaps as long as two years, (i.e., when she and/or her ex-husband filed for divorce), it is conceivable counsel communicated with her through her ex-husband. As a result, the court does not find Michelle’ counsel responsible for the failure to produce her at deposition and does not impose a monetary sanction against him.

GEICO’s request for judicial notice is granted.

Disposition

The motion is granted on the terms above.