2016-00194678-CU-BC

Lino’s Trucking, Inc. vs. Sac Trucking, Inc.

Nature of Proceeding: Motion to Compel the Deposition of Defendant

Filed By: Harris, Tanya

Plaintiffs/Cross-Defendants Lino’s Trucking, Inc., Lino Hernandez, Joycelyn Hernandez, and Ligia Hernandez (collectively, “Plaintiffs”) moves for an order compelling the deposition of Defendant/Cross-Complainant Carmen Bahena (“Carmen”). Plaintiffs also seek monetary sanctions in the amount of $8,375.00 to Plaintiffs’ counsel and $150.00 for the court reporter’s fee for appearing at the deposition to take the Certificate of Non-Appearance of Carmen on April 10, 2018. The motion is ruled upon as follows.

Plaintiffs’ counsel began requesting dates of availability for Carmen’s deposition on or

about January 22, 2018. (Harris Decl. ¶ 3.) Between January 25 and February 6, 2018, Plaintiffs’ counsel made three additional requests for available dates for Carmen’s deposition. (Harris Decl. ¶¶ 4-6, Exhs. A-C.) Thereafter, Carmen’s deposition was scheduled for March 1, 2018. (Harris Decl. ¶¶ 7, 8, Exh. D, E.) A notice of deposition was served via overnight mail on February 16, 2018. (Harris Decl. ¶ 9, Exh. F.) On February 19, 2018, Defendants’ counsel informed Plaintiffs’ counsel that Carmen “has been suffering from severe symptoms relating to depression” and would be meeting with her therapist to “ensure that she is able to meaningfully participate in a deposition.” (Harris Decl. ¶ 10, Exh. G.) On February 28, the day before Carmen’s deposition was to take place, defense counsel emailed Plaintiffs’ counsel stating Carmen would not appear for her deposition due to mental health issues. (Harris Decl.

¶ 11, Exh. H.) Plaintiffs’ counsel requested new deposition dates for Carmen. After numerous attempts to request possible deposition dates for Carmen, defense counsel notified Plaintiffs’ counsel that none would be provided and “perhaps you can set hers only for as soon as possible so that you have time to file a motion to compel if she fails to appear.” (Harris Decl. ¶¶ 12-16, Exh. I-M.) A notice of deposition was served on March 23, 2018, setting the deposition for April 10, 2018. (Harris Decl. ¶ 17, Exh. N.) Carmen failed to appear for her deposition and a certificate of non-appearance was created on April 10, 2018. Counsel for Plaintiffs and Defendants were present. (Harris Decl. ¶ 18, Exh. O.) A note from Carmen’s primary care physician was provided at the deposition but no documentation from a mental health provider treating Carmen was provided. (Harris Decl. ¶ 19, Exh. P.) The note from the primary care provider is not under oath and states that the primary stressor causing Carmen’s mental health issues is her legal issues and the related deposition. The note states Carmen needs reasonable accommodations, but does not define the request. (See id.) Counsel for the parties again met and conferred on April 26, 2018, at which time Carmen was still not willing provide dates for deposition. (Harris Decl. ¶ 20.)

On April 26, 2018, Plaintiffs’ counsel took the deposition of Sandra Bahena (“Sandra”). At her deposition, Sandra stated that Carmen, as the owner and operator of SAC Trucking, was necessary to provide testimony on “key questions” related to the litigation. Sandra was “repeatedly” unable to answer questions and when asked who could answer the questions, Sandra responded that Carmen could. (Harris Decl. ¶ 21.) As of the date of filing the motion, Plaintiffs had not received any objections to the deposition or communication with dates of availability for Carmen’s deposition. (Harris Decl. ¶ 22.)

Analysis

There is no dispute that Plaintiffs have the right to take Carmen’s deposition. (Code Civ. Proc. ¶ 2025.010.) Code of Civil Procedure section 2017.010 provides, in pertinent part: “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

Here, Defendants have not opposed Plaintiffs’ right to take Carmen’s deposition; and failed to file a declaration from Carmen’s doctor or psychiatrist indicating she is unable to appear for deposition, when she may be able to appear at deposition, and/or what “accommodations” should be made for Carmen’s deposition. Defendants have not moved for a protective order and failed to proffer legal authority that Carmen may refuse to appear at deposition or clarified what “accommodations” for Carmen’s deposition were requested.

The motion is GRANTED. Carmen shall appear at deposition by no later than July 6, 2018. The parties shall meet and confer regarding a mutually available date and time.

Plaintiffs request $8,525.00 in sanctions, representing 3.5 hours attempting to arrange Carmen’s deposition, 13 hours preparing for Carmen’s deposition, and 17 hours of time in preparing the instant motion at the hourly rate of $250.00. (Harris Decl. ¶ 23.) Plaintiffs also request fees in the amount of $150.00 for the court reporter’s appearance at the deposition to take Carmen’s Certificate of Non-Appearance. (Harris Decl. ¶ 24, Exh. Q.) The Court awards $650, representing two hours of attorney time and the $150 court reporter fee.