Case Number: BC684121 Hearing Date: May 23, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Esteban Yanez,

Plaintiff,

v.

Victor Villasenor Jr., et al.,

Defendants.

Case No.: BC684121

Hearing Date: May 23, 2018

[TENTATIVE] order RE:

Plaintiff’S motion for order compelling Defendant’s attendance and testimony at deposition

BACKGROUND

Plaintiff Esteban Yanez (“Plaintiff”) moves for an order compelling Defendant Victor Villasenor (“Defendant”) to submit to deposition. This case arises from a motor vehicle collision between Plaintiff and Defendant. Plaintiff is also alleging causes of action against Defendant’s then employer Beverly Hills Car Club, Inc. (“Car Club”) because Defendant was allegedly acting within his scope of employment at the time of the collision.

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

On January 26, 2018, Plaintiff first served on Defendant a Notice of Taking Deposition, setting the deposition for February 20, 2018.[1] However, Plaintiff’s counsel took this deposition off calendar. On February 7, 2018, Plaintiff’s counsel served on Defendant another notice of deposition setting the deposition for March 20, 2018. At the time set for deposition on March 20, Defendant did not appear. Defense counsel did appear on that day for the deposition of Car Club’s person most knowledgeable, which had been noticed for the same day. Defense counsel informed Plaintiff at the PMK deposition that Defendant would not be appearing because counsel had not had adequate time to prepare Defendant for deposition. Plaintiff took a Certificate of Nonappearance for Defendant on March 20, 2018. (Pl. Exh. 9.)

Plaintiff asks this Court to compel the Deposition of Defendant after his failure to appear on March 20, 2018. Defendant argues in opposition that this motion is unnecessary, and that Defendant does intend to appear for deposition. Defendant states that he did not appear on March 20, 2018 because Defendant had acquired counsel on February 16, 2018, a few weeks before the date noticed for deposition, and counsel had not had adequate time to prepare the Defendant for deposition.

The Court finds Defendant’s explanations for his failure to appear insufficient. Under Code of Civil Procedure § 2025.210(b), the Plaintiff may serve a notice for deposition without leave of court “on any date that is 20 days after service of the summons on, or appearance by, any defendant.” CCP § 2025.270(a) provides that an “oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.”

Defendant argues that he must be allowed appropriate time to prepare with counsel before the deposition, but Defendant cites to no authority which supports his position. As noted above, Code of Civil Procedure § 2025.210(b) specifically addresses this issue of timing and allows Plaintiff to serve a deposition notice “on any date that is 20 days after service of the summons on, or appearance by, any defendant.” Here, Defendant was served with the summons and complaint on December 13, 2017. Defendant was served with a notice for deposition first on January 26, 2018 and subsequently with another notice for deposition on February 7, 2018. Both dates on which Defendant was served with deposition notices were more than 20 days after service of the summons. Thus, the notices of deposition were not premature pursuant to CCP § 2025.210(b). Accordingly, Plaintiff’s motion to compel deposition is granted. Defendant 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 Plaintiff.

Plaintiff also requests sanctions against Defendant Victor Villasenor Jr. and his counsel Paul C. Kwong and Mavredakis Cranert Crawford. The Court finds Defendant’s failure to appear for deposition a misuse of the discovery process. (CCP § 2023.010(d).) Sanctions have been sufficiently noticed against Defendant and counsel. Sanctions are awarded in the amount of $660.00, representing 1 hour for drafting the motion and for appearance at the hearing, at $350.00 per hour, plus the $60 filing fee, plus the $250.00 for the certificate of non-appearance. Defendant Victor Villasenor Jr. and his counsel Paul C. Kwong and Mavredakis Cranert Crawford are ordered to pay sanctions to Plaintiff, by and through counsel, in the amount of $660.00 within thirty (30) days of this order.

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Conclusion and Order

Plaintiff’s motion to compel deposition is granted. Defendant 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 Plaintiff.

The Court grants Plaintiff’s request for sanctions. Defendant and his counsel are ordered to pay sanctions to Plaintiff, by and through counsel, in the amount of $660.00 within thirty (30) days of this order.

All parties should note that the hearing on this motion and all future court dates will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

Defendant is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: May 23, 2018 ___________________________

Elaine Lu
Judge of the Superior Court

[1] Plaintiff argues that Defendant was on notice of the deposition in December of 2017 when the original notice of deposition was served on Car Club. However, Defendant was not listed on the proof of service for the notice of deposition served in December of 2017. There is also no indication that Car Club’s attorney was authorized to receive service on Defendant’s behalf at the time of service. Thus, the first notice of deposition served on Defendant was on January 26, 2018.