Case Number: BC685877 Hearing Date: May 23, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Irene Torres,

Plaintiff,

v.

Smart & Final Inc., et al.,

Defendants.

Case No.: BC685877

Hearing Date: May 23, 2018

[TENTATIVE] order RE:

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

In this action, Plaintiff Irene Torres (“Plaintiff”) alleges that she was injured on the premises operated by Defendant Smart & Final Stores LLC, erroneously sued as Smart & Final, Inc., (“Defendant”). The incident occurred on February 7, 2017. The complaint, filed December 6, 2017, 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 and an amended opposition, and Defendant has replied.

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

The instant motion before the Court is one to compel deposition after a non-appearance by the deponent. The main point of contention between the moving and opposing parties is whether Plaintiff’s deposition may move forward before Defendant produces a video tape of the incident. Plaintiff contends that she requested production of the tape before the deposition subpoena was served, and that Plaintiff should not be compelled to sit for deposition until after being allowed to review the tape. Defendant contends that Plaintiff should not be allowed to see the tape before the deposition because it may change her testimony.

On February 9, 2018, Plaintiff served on Defendant a request for production of documents, which included a request for any surveillance video tapes. On March 15, 2018, Defendant served on Plaintiff a Notice of Taking Deposition, setting her deposition for March 28, 2018. Plaintiff did not object to the notice or contact counsel to reschedule the deposition. Plaintiff and her counsel failed to appear at the March 28, 2018 deposition. Defendant took a certificate of non-appearance. (Def. Exh. B.) After the non-appearance, Defendant met and conferred with Plaintiff’s counsel regarding the non-appearance. Plaintiff agreed to be deposed but made appearance at the deposition contingent on Defendant first producing the surveillance video of the incident prior to the deposition. (See Def. Exh. D.) On April 9, 2018, Defendant served its Reponses to the demand for production, in which Defendant refused to produce the video until after the deposition of Plaintiff.

DISCUSSION

Defendant moves to compel Plaintiff to attend her deposition. In opposition, Plaintiff argues that she propounded her demand for production before Defendant served her with the deposition notice, and therefore, the video should be produced before the deposition. Ordinarily, the Court would be inclined to agree with this reasoning.

However, this issue presents itself to the Court only in the context of Defendant’s motion to compel Plaintiff’s deposition. At no point has Plaintiff filed a motion to compel responses or to compel further responses from Defendant to Plaintiff’s request for production of the videotape. The Court notes that Plaintiff served the demand for production on February 9, 2018. Code of Civil Procedure § 2031.260 states that a party must respond to a demand for production within 30 days. Defendant’s responses were thus due on March 12, 2018. When Defendant failed to respond by that deadline, Plaintiff did not file any motion to compel responses. Defendant did not serve its responses until April 9, 2018, and even then, Defendant did not serve a copy of the video with its responses. If Plaintiff deemed Defendant’s responses to the request for production incomplete or deemed Defendant’s objections to be without merit, Plaintiff could have filed a motion to compel further responses. (CCP § 2031.310.) Plaintiff has neither reserved a hearing date nor filed a motion to compel further. Nor has Plaintiff reserved an informal discovery conference date on the Court Reservation System in connection with any motion to compel further.

Plaintiff has had multiple options for relief under the Discovery Act but has declined to pursue those avenues. As such, Plaintiff’s argument that Defendant should have produced the video prior to Plaintiff’s deposition does not defeat this motion. The failure to receive the video before Plaintiff’s deposition can in large part be attributed to Plaintiff’s failure to pursue the relief provided in the Discovery Act.

Plaintiff’s counsel also asserts in the opposition that Plaintiff has a right to see any video of the incident before Plaintiff’s deposition under Filipoff v. Superior Court (1961) 56 Cal.2d 443.

Plaintiff’s reliance on Filipoff is misplaced. 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, [1] 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.) Nothing in the Filipoff decision states that a plaintiff is entitled to review an existing video tape before being deposed.

Filipoff is distinguishable. Here, the failure to obtain the video tape before Plaintiff’s deposition is partially attributable to Plaintiff’s own inaction as stated above. Further, Plaintiff could have also moved for a protective order once the notice of deposition was served, moved to quash the subpoena, or objected to the deposition notice. Plaintiff had many options available to her but chose instead to engage in self-help and refuse to appear at the deposition without any legal authority supporting her contentions.

In the amended opposition, Plaintiff argues that Rosemont v. Superior Court (1964) 60 Cal.2d 709 supports Plaintiff’s position that the video tape must be disclosed before Plaintiff’s deposition can occur. However, as stated in the amended opposition, Rosemont involved one of the parties requesting a protective order. (Id. at 711-712.) Plaintiff has taken no such steps in this case. As such, Rosemont is also inapplicable.

Accordingly, Defendant’s motion to compel the 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.

SANCTIONS

The Court finds Plaintiff’s failure to appear at 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 $1,210.60, representing 1 hour to prepare the motion and reply and appear at the hearing, at $180.00 per hour, plus the $60 filing fee, the $685.00 fee for the language interpreter who appeared for deposition, and $285.60 for the court reporter’s taking the certificate of non-appearance. Plaintiff Irene Torres and her counsel David Azizi are ordered to pay sanctions to Defendant, by and through defense counsel, in the amount of $1,210.60 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 deposition within twenty (20) days of notice of this order at a date, time, and location to be noticed by Defendant.

Plaintiff Irene Torres and her counsel David Azizi are ordered to pay sanctions to Defendant, by and through defense counsel, in the amount of $1,210.60 within 30 days.

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] 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.)