Case Name: Loan Tran vs Jorge Natera
Case No.: 16CV303956

Defendant has filed a motion for monetary sanctions, only, for Plaintiff’s failure to “properly appear” for a noticed deposition. Apparently the deposition has since been held, as no motion to compel deposition has been filed.

Defendant states that, although the Plaintiff appeared for deposition with counsel, Defendant’s counsel “suspended” the deposition because Plaintiff’s husband was present, and Plaintiff’s counsel allegedly said that he might be called to testify if the Plaintiff forgot something. Unsatisfied with this response, Defense counsel cancelled the deposition. No motion for protective order has been filed. This motion seeks the cost of the court reporter, the interpreter, the attorney time to prepare for the deposition, attorney travel to the deposition site, and attorney time to prepare for the deposition, all in the amount of just over $3,110.

Although the motion is unopposed, [t]he failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.” Rule of Court 3.1348(b).

Defendant cites to miscellaneous sections in the CCP 2023 series, CCP 2024.020 (discovery cutoff), and portions of the deposition provisions of the CCP, but provides no legal analysis as to why these code sections authorize monetary sanctions in this setting, except to state that the behavior was a “misuse of” an authorized discovery method, and that sanctions are appropriate under CCP 2023.010 and 2023.030. Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction. Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, section 2023.030 does not provide an independent basis for an award of sanctions, without a related code section under another chapter.

Defendant then argues that sanctions are proper under Section 2025.440(b), which authorizes monetary sanctions against a deponent pursuant to section 2020.240 “on whom a deposition subpoena has been served,” if that deponent fails to attend the deposition or refuses to be sworn. It does not appear that Plaintiff was served with a deposition subpoena, but instead appeared as a result of a deposition notice, so section 2025.440(b) does not apply. Moreover, the evidence submitted reflect that the Plaintiff did appear for the deposition. No refusal to be sworn is found in the record, which includes the transcript prepared, but instead Defendant chose not to proceed.

Accordingly, the motion is DENIED. The Court finds no clear statutory authority that supports monetary sanctions in this setting (and the other code sections cited appear to have no application to this situation).