Case Number: BC631275 Hearing Date: April 05, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Kerry G. Ross,

Plaintiff,

v.

Rory Berryman, et al.,

Defendant.

Case No.: BC631275

Hearing Date: April 5, 2018

[TENTATIVE] order RE:

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

BACKGROUND

In this action, Plaintiff Kerry G. Ross (“Plaintiff”) alleges that she was injured in a vehicle-pedestrian collision with Defendant Rory Berryman (“Defendant”). The incident occurred on July 12, 2016. The complaint was filed on August 19, 2016. The First Amended Complaint, filed on February 27, 2017, alleges causes of action for negligence and negligence per se.

Defendant moves for an order compelling Plaintiff to submit to her deposition and for sanctions against Plaintiff. On January 30, 2018, the Court granted Plaintiff counsel’s motion to be relieved as counsel. No substitution of attorney has been filed with the Court. The Court considers Plaintiff to be self-represented. No opposition has been filed to the motion to compel.

This motion was continued from March 2, 2018, because it was not clear whether Plaintiff had received proper notice of this motion. Since the last hearing, Defendant filed proof of service of the moving papers on March 2, 2018. Thus, the Court may now proceed to examine the motion on the merits.

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).)

DISCUSSION

Plaintiff’s deposition was first noticed for July 11, 2017. On July 5, 2017, Plaintiff’s counsel served an opposition to the deposition and stated that the deposition would be set on mutually convenient dates. Defendant re-noticed the deposition for September 6, 2017. Plaintiff did not object, but Plaintiff’s counsel indicated that counsel had lost contact with Plaintiff. Plaintiff did not appear on September 6, and a certificate of non-appearance was prepared. On September 11, 2017, Plaintiff’s counsel informed Defendant’s counsel that Plaintiff’s counsel had heard back from Plaintiff, and Plaintiff’s counsel was able to find a date that would work for Plaintiff’s schedule. Accordingly, the deposition was set for November 1, 2017, and then continued to November 16, 2017 due to scheduling conflicts. On November 16, 2017, Plaintiff’s counsel appeared for the deposition, but Plaintiff did not. Another certificate of non-appearance was prepared.

The Court finds Plaintiff’s successive failures to attend her deposition to constitute misuse of the discovery process. As a litigant, Plaintiff bears the responsibility to update her counsel of her whereabouts so that she may respond to discovery. By failing to do so, Plaintiff has caused unnecessary delays of more than half a year in proceeding with discovery in this case, and Plaintiff has forced Defendant to incur unnecessary expenses to pursue discovery to which Defendant is entitled. Plaintiff’s failure to advise her attorney of her whereabouts for an extended period does not justify her non-appearance.

Despite having been served with the moving papers, Plaintiff has failed to file any opposition to this motion, leading the Court to conclude that there is no justification for Plaintiff’s successive failures to appear for deposition.

Accordingly, Defendant’s motion to compel deposition is granted. Plaintiff is ordered to appear for deposition within twenty (20) days of notice of this order at a date, time, and location to be noticed by Defendant.

As noted above, the Court finds Plaintiff’s successive failures to appear for deposition a misuse of the discovery process. (CCP § 2023.010(d).) Sanctions have been sufficiently noticed. Sanctions are awarded in the amount of $435.00, representing 2.5 hours for drafting the motion and for appearance at the hearing, at $150.00 per hour, plus the $60 filing fee. Plaintiff Kerry Ross is ordered to pay sanctions to Defendant and Defendant’s attorney in the amount of $435.00 within 30 days of notice of this order. (CCP § 2023.030.)

CONCLUSION AND ORDER

The Court grants Defendant’s motion to compel Plaintiff’s deposition. Plaintiff is ordered to appear for deposition within twenty (20) days of notice of this order at a date, time, and location to be noticed by Defendant.

Plaintiff Kerry Ross is ordered to pay sanctions to Defendant and Defendant’s attorney in the amount of $435.00 within 30 days of notice of this order.

Defendant is ordered to provide notice of this order.

DATED: April 5, 2018 ___________________________

Elaine Lu

Judge of the Superior Court