Case Number: BC655024 Hearing Date: August 09, 2018 Dept: 4

MOVING PARTY: Defendant and cross-complainant John Stewart Company

RESPONDING PARTY: None

Motion to Compel Plaintiff’s Attendance at Deposition and the Production of Documents at Deposition

The court considered the moving papers.

BACKGROUND

On March 23, 2017, plaintiff Gloria Lakin filed a complaint against defendants Barnard Villas, Ltd., Barnard Park Villas, Rose Kaplan, Stanley Black, and John Stewart Company for premises liability. She alleges that on June 19, 2016, a fence on defendants’ premises fell on her.

Trial was continued to November 9, 2018.

DISCUSSION

Defendant John Stewart Company requests an order compelling plaintiff Gloria Lakin to attend her deposition and to produce documents at her deposition, within ten days of the date of the hearing.

CCP §2025.450(a) provides: “If, after service of a deposition notice, a party to the action . . . , 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 . . . 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 . . . described in the deposition notice.”

CCP § 2025.450(b) states, “A motion under subdivision (a) shall comply with both of the following:

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP § 2016.040 states, “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

On January 31, 2018, defendant served a notice of taking deposition and demand to produce upon plaintiff, scheduling the deposition for April 3, 2018. Plaintiff did not appear, and defense counsel sent a letter that day to plaintiff’s counsel regarding her failure to appear. On May 11, 2018, defendant served another notice, scheduling the deposition for June 4, 2018. She failed to appear. Defendant contends that to date, plaintiff’s deposition has not been taken or rescheduled despite defense counsel’s good faith attempts to reschedule the deposition.

The court finds that defendant properly served plaintiff with a deposition notice and plaintiff failed to appear. The motion is therefore GRANTED.

Defendant’s request to compel plaintiff to produce documents is DENIED WITHOUT PREJUDICE because defendant has not set forth specific facts showing good cause justifying the production for inspection of any document.

If a motion to compel deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. CCP § 2025.450(g)(1).

Under CCP § 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Under CCP § 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Defendant requests monetary sanctions against plaintiff and her attorney in the amount of $860. The court finds that $560 ($200/hr. x 2.5 hrs., $60 filing fee) is a reasonable amount to be awarded against plaintiff and her attorney of record.

The court ORDERS:

The court orders that plaintiff Gloria Lakin appear for her deposition within ten days, on a mutually agreeable day and time, at US Legal Support, 15250 Ventura Boulevard, Suite 410, Sherman Oaks, CA 91403.

The court orders that plaintiff Gloria Lakin pay a monetary sanction to defendant in the amount of $560 within 30 days.

Moving defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: August 9, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court