Case Number: 17STLC01985 Hearing Date: June 04, 2018 Dept: 94

Plaintiff Prats, Inc.’s Motion to Compel Defendants Nuria Choy-Fernandez and Constantino Miguel to attend their depositions, and for monetary sanctions against defense counsel, is DENIED. The parties are ordered to meet and confer within 10 days to determine a mutually convenient date and time for Defendants’ depositions.

Legal Standard

CCP section 2025.450(a) states in relevant part:

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(Code Civ. Proc., § 2025.450(a).) A motion to compel deposition shall be accompanied by a meet and confer declaration under Section 2016.040. (See id., § 2025.450(b)(2).) A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (See id., § 2025.450(g)(1).)

Discussion

On December 11, 2017, Plaintiff served Defendants with notice of their depositions for January 10 and 18, 2018. (Motion, Katofsky Decl., ¶2 and Exh. A.) Upon defense counsel’s request, the depositions were moved to January 31, 2018 at 10:00 am and 1:00 pm. (Id. at ¶¶2-3 and Exh. B.) The depositions were properly re-noticed on January 9, 2018. On the morning of January 31, 2018, both Defendants arrived in advance of first deposition scheduled for 10:00 am. (Id. at ¶4.) Defense counsel apparently called Plaintiff’s counsel’s office at 9:50 am to inform them that he would arrive in 20 minutes. (Ibid.) However, he did not arrive until a few minutes after 10:30 am. (Id. at ¶¶5-6 and Exh. C; Oppo., Folkes Decl., ¶¶2-3.)

The parties provide contradictory narratives regarding what occurred upon defense counsel’s arrival. Plaintiff contends that defense counsel immediately began shouting and interrupting Plaintiff’s counsel, which eventually escalated into threatening a physical altercation. (Motion, Katofsky Decl., ¶5.) Plaintiff’s counsel felt the need to have the police called, although defense counsel left before they arrived. (Motion, Groves Decl., ¶¶3-6.) Defense counsel contends that it was Plaintiff’s counsel who immediately became angry and confrontational. (Oppo., Folkes Decl., ¶¶2-6.) Both attorneys accuse the other of using racially inappropriate language. (Motion, Katofsky Decl., ¶5; Oppo., Folkes Decl., ¶5.)

Although each attorney blames the other for the cancelled deposition, commonsense behavior by either one could have prevented this situation. Defense counsel could have called again when it became apparent that his estimated arrival time was inaccurate. Similarly, Plaintiff’s counsel offers no explanation for cancelling the depositions after having been informed that defense counsel was running late. Plaintiff’s counsel could have easily called defense counsel prior to terminating the depositions to determine how much longer defense counsel was going to be delayed. A delay of 20 minutes when driving from downtown Los Angeles to Sherman Oakes, where Plaintiff’s counsel’s office is located, is not uncommon. (See Oppp., Folkes Decl., ¶2.) Plaintiff’s counsel’s unilateral decision to end the depositions without making any effort to determine whether the day could be salvaged was not reasonable. This is even more so given the fact that the depositions were scheduled back-to-back such that both attorneys had set aside several hours that day to complete the depositions.

In addition to the fact that a single phone call from either attorney could have resolved the issue, the court notes that Plaintiff failed to submit a declaration demonstrating that it met and conferred with Defendants regarding this motion, as required by CCP section 2025.450(b)(2). Indeed, the lack of meet and confer effort is raised by the opposition, but Plaintiff has yet to file a reply.

The court finds that Plaintiff’s counsel’s unilateral decision to terminate the depositions and failure to demonstrate that he met and conferred with defense counsel prior to filing the instant motion warrants denial of the instant motion and request for sanctions.

Moving party to give notice.