Lawzilla Additional Information:
Per the Los Angeles court records plaintiff is represented by attorney Raymond Ghermezian who is being sanctioned by the court.

Case Number: BC644289 Hearing Date: April 03, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Cynthia Castelliano,

Plaintiff,

v.

7-Eleven, Inc., et al.,

Defendants.

Case No.: BC644289

Hearing Date: April 3, 2018

[TENTATIVE] order RE:

defendant’S motion for order compelling plaintiff’s attendance and testimony at deposition

BACKGROUND

In this action, Plaintiff Cynthia Castelliano (“Plaintiff”) alleges that she was injured in a trip and fall on the premises operated by Defendant H-H & S Enterprises, Inc. (“Defendant”).[1] The incident occurred on July 25, 2016. The complaint, filed December 19, 2016, alleges causes of action for negligence and premises liability.

Defendant moves for an order compelling Plaintiff to submit to her deposition and for sanctions against Plaintiff and her counsel. Plaintiff has filed an opposition.

LEGAL STANDARD

Pursuant to CCP §2025.450, if after service of a deposition notice, a party to the action, without having served a valid objection, fails to appear for examination, or proceed with it, or to produce for inspection any document, the party giving notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document. (CCP §2025.450(a).) A motion to compel the deposition of a party to the action must be accompanied by a meet and confer declaration, or, when the deponent failed to attend the deposition, a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (CCP §2025.450(b)(2).)

BACKGROUND

On January 19, 2018, Defendant served on Plaintiff a Notice of Taking Deposition, setting the deposition for February 15, 2018. On February 12, 2018, Plaintiff’s counsel informed defense counsel that the deposition would not be able to go forward on February 15, 2018. On February 16, 2018, defense counsel called plaintiff’s counsel to determine a mutually agreeable date for deposition. Both parties eventually agreed to hold the deposition on March 8, 2018. A notice of deposition set for March 8, 2018 was served on February 16, 2018. Plaintiff did not object to the deposition notice for March 8, 2018 at any time.

On March 2, 2018, Plaintiff counsel’s paralegal telephoned defense counsel and stated that Plaintiff’s deposition would not go forward unless Defendant responded to discovery. Defense counsel stated that Plaintiff had not propounded any discovery. The paralegal ultimately acknowledged that no discovery had been propounded. Later that day, Plaintiff’s counsel sent Defense counsel an email asking if there was a video of the accident. Defense counsel, knowing that this was not a proper request for discovery information, looked through the file and as a courtesy told plaintiff’s counsel that there was no video.

On March 7, 2018, a paralegal from Plaintiff counsel’s office again contacted defense counsel but spoke with another attorney in the office. The paralegal demanded that they be provided with copies of all incident reports, photographs, and videos. Defense counsel inquired whether discovery had been propounded. The paralegal first stated that discovery had been propounded, but after digital copies of the discovery was requested by counsel, the paralegal admitted that Plaintiff had not propounded any such discovery. Plaintiff’s counsel then emailed the attorney that had been contacted by the paralegal and requested that defense counsel agree not to produce any video at the time of trial in the event any such video existed. Defense counsel refused to so stipulate.

On the day of the deposition, March 8, 2018, Plaintiff and Plaintiff’s attorney appeared. However, after Plaintiff was identified by name and birthdate, plaintiff’s counsel interrupted the deposition and stated that the deposition would not move forward unless there was a stipulation by defense counsel that any video of the incident did not exist. Defense counsel refused to so stipulate, and Plaintiff and Plaintiff’s counsel left the deposition. At no point did Plaintiff ever file a motion to quash the deposition, stay discovery, or object to the notice of deposition.

DISCUSSION

Defendant moves to compel Plaintiff to attend and complete her deposition. Defendant also requests sanctions for the actions of Plaintiff and her counsel, and for the Court to “set back” the earliest dates on which Plaintiff may propound discovery until after the deposition of the Plaintiff under CCP §§ 2025.210, 2030.020, and 2031.020.

In opposition, Plaintiff’s counsel asserts that Plaintiff has a right to see any video tape of the incident before Plaintiff’s deposition. In support of this contention Plaintiff cites to Filipoff v. Superior Court (1961) 56 Cal.2d 443.

The Court does not find Plaintiff’s argument persuasive. Filipoff is distinguishable. In Filipoff, the plaintiff noticed a deposition and request for production of documents against defendant Putnam. (56 Cal.2d at 447.) Putnam and his attorney appeared for the deposition and brought the documents. (Id. at 448.) In answering the questions, Putnam stated that he did not remember but could remember if his memory was refreshed with the documents. (Ibid.) Putnam’s attorney refused to allow Putnam to see the documents in answering the questions because they were inadmissible, [2] but would allow Putnam to see the documents if the plaintiff would agree to a stipulation regarding the availability of an affirmative defense. (Ibid.) The Supreme Court determined that the documents must be given to Putnam to refresh his recollection and for the deposition to be continued once his memory was refreshed. (id. at 453.)

Here, Plaintiff did not propound any discovery in this matter prior to Plaintiff’s scheduled deposition. Therefore, the failure to know about the existence of a video tape before the deposition is the fault of Plaintiff, not defense counsel. Had Plaintiff propounded discovery, she would have had a host of options to compel the production of any such video tape, or to request that Defendant admit there is no such tape. Further, Plaintiff could have then also moved for a protective order once the notice of deposition was served, moved to quash the subpoena, or objected to the deposition. Plaintiff had many options available to her but chose instead to engage in self-help and suspend the deposition without any legal authority supporting her contentions.

Accordingly, Defendant’s motion to compel deposition is granted. Plaintiff is ordered to appear for the deposition noticed by Defendant set for April 13, 2018.

Defendant also requests that the Court “set back” the earliest date that Plaintiff may propound discovery. Defendant cites to CCP §§ 2025.210, 2030.020, and 2031.020. None of these sections allow the Court to make such an order. Each of the above cited sections allow the Court to order discovery be propounded at an earlier date than the time frame allowed by each statute, but nothing in these sections allows the Court to “set back” the date that Plaintiff may propound discovery. Defendant also cites to CCP § 2019.020, which does allow the Court to “sequence the timing of discovery for the convenience of parties and witnesses and in the interest of justice.” In order for the Court to make such an order, the moving party must show good cause. (CCP § 2019.020, subd. (b).) Here, Defendant has not shown good cause that the changing of the sequence of discovery is necessary for the convenience of the parties or for the witnesses. Further, delaying Plaintiff’s ability to propound discovery would not be in the interest of justice. As stated above, Plaintiff must appear for deposition on April 13, 2018. Under the statutory time limits for discovery, it would not be possible for Plaintiff to require responses to any discovery propounded before the deposition is to take place. If Plaintiff refuses to obey the Court order to appear for deposition, then there are remedies available to Defendant, such as issue sanctions, evidence sanctions, and terminating sanctions under CCP § 2025.450(h). Therefore, Defendant’s request to “set back” Plaintiff’s ability to propound discovery is denied as such an order would not be in the interest of justice.

The Court finds Plaintiff’s failure to complete her deposition to constitute a misuse of the discovery process on the part of Plaintiff and her counsel. (CCP § 2023.010(d).) Sanctions have been sufficiently noticed against Plaintiff and her counsel. Sanctions are awarded in the amount of $1,418.00, representing 1.5 hours to prepare the motion and opposition and appear at the hearing, at $165.00 per hour, plus the $60 filing fee, the $675.00 fee for the videographer at the suspended deposition, and $435.50 for the court reporter’s time to attend the suspended deposition and prepare the transcript for the motion. Plaintiff Cynthia Castelliano and her counsel Raymond Ghermezian are ordered to pay sanctions to Defendant, by and through defense counsel, in the amount of $1,418.00 within 30 days. (CCP § 2023.030.)

CONCLUSION AND ORDER

The Court grants Defendant’s motion to compel Plaintiff’s deposition. Plaintiff is ordered to appear for the deposition noticed by Defendant set for April 13, 2018.

Defendant’s request to “set back” the dates at which Plaintiff may propound discovery is denied.

Plaintiff Cynthia Castelliano and her counsel Raymond Ghermezian are ordered to pay sanctions to Defendant, by and through defense counsel, in the amount of $1,418.00 within 30 days of notice of this order.

Defendant is ordered to provide notice of this order.

DATED: April 3, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Defendant 7-Eleven Inc. was dismissed from this suit on June 6, 2017.

[2] At the time, documents could only be inspected in discovery if they would be admissible in trial of the action. (56 Cal.2d at 448.)