BC453415

Plaintiff, M.C.’s Motion to Compel Defendants, Christina and George Chavez to Appear for Deposition is Granted. Plaintiff’s Motion to Compel Non-Parties, Karen Hernandez and George Chavez, Jr. to Appear for Deposition is Denied.

Plaintiff’s Request for Monetary Sanctions is Granted. Defendants and their attorneys of record, jointly and severally, are ordered to pay sanctions to Plaintiff, by and through counsel of record, in the amount of $2130.

1. Background Facts
Plaintiff, M.C., a minor, by and through her GAL, filed this action against Defendants, Walden Family Services, Christina Chavez, George Chavez, and Rafael Ernesto Hernandez for damages arising out of alleged sexual abuse while Plaintiff was in foster care. Plaintiff alleges the Chavezes were her foster parents at the time of the abuse, and they failed to adequately supervise her and prevent the Chavezes’ son-in-law, Hernandez, from sexually abusing her.

2. Motion to Compel Deposition
Plaintiff has been attempting to take the depositions of the Chavezes, as well as their son and daughter, Karen Hernandez and George Chavez, Jr., for over a year. On 9/17/13, the parties participated in an informal discovery conference. At this time, Plaintiff moves to compel the depositions of the Chavez Defendants, as well as their son and daughter.

Any opposition to the motion was due on or before 3/24/14. Defendants filed an untimely opposition on 3/27/14. The opposition consists of arguments that (a) the case is baseless, (b) depositions are not necessary because Defendants will not testify any differently than the statements they have already given in this case, and (c) Defendants are almost out of insurance money to defend this case, and will soon be in pro per without assets or availability of insurance.

a. Analysis re: Defendants, George and Christina Chavez
Pursuant to CCP §2025.210, et seq., Plaintiff is entitled to serve a notice of deposition on any party to the action. Plaintiff served proper notices of deposition on Defendants per CCP §2025.220. Defendants have not served valid objections to the notices of deposition, and have failed to appear for deposition. Per §2025.280(a), a properly served notice of deposition obligates a party to the action to appear for deposition.

Pursuant to §2025.450, a motion to compel is Plaintiff’s proper remedy when Defendants’ depositions have been noticed, but they have failed to appear.

Defendants, in opposition to the motion, fail to set forth any legally valid reason why they should not be compelled to attend a deposition. Defendants’ personal opinion that the case is baseless is not sufficient to overcome the obligation to participate in formal discovery unless and until Defendants successfully file a dispositive motion in the case. Defendants’ contention that they will say the same thing they have said outside of court is also not relevant, as they are obligated to testify, under oath, in connection with the case. Finally, their contention that they are entitled to a protective order because they will shortly run out of insurance money fails for two reasons. First, as Defendants themselves concede, they did not make a timely motion for a protective order. Second, and more importantly, the mere fact that a person will be in pro per does not mean that the person is entitled to additional legal protection over and above what the law affords a represented litigant.

The motion to compel the depositions of Defendants, George and Christina Chavez is granted. The Court will discuss a date and time for Defendants’ depositions with the parties at the time of the hearing.

b. Karen Hernandez and George Chavez, Jr.
Plaintiff also moves to compel the depositions of Defendants’ children, Karen Hernandez and George Chavez, Jr. While it is not entirely clear from the papers, it appears that Karen and George are both adults at this time.

The Court’s concern with the motion to compel is that Karen and George are non-parties to the action, and Plaintiff has not propounded a deposition subpoena on either of them. It appears that the parties agreed that Karen and George would be produced without a subpoena (see Exhibit 6 to the moving papers), and Defendants do not object, in their opposition, on that ground. However, per CCP §§2020.010(a)(1) and 2025.280(b), a non-party can only be obligated to appear at deposition pursuant to a subpoena.

The Court is not aware of any authority permitting it to compel a non-party witness to the proceedings to appear for deposition without service of a subpoena and failure to obey said subpoena. Plaintiff has not provided any authority for her request to compel their depositions in her moving papers. The motion to compel the depositions of Karen and George is therefore denied. This ruling is without prejudice to Plaintiff’s right to propound a valid subpoena on Karen and George.

c. Sanctions
Plaintiff seeks sanctions against Defendants and their attorneys of record in connection with the motion. Sanctions are appropriate per CCP §§2023.010(d) and 2025.450(g)(1). Defendants have repeatedly agreed to appear for deposition, but have ultimately failed to do so. Defendants filed untimely opposition to the motion, and failed to cite any legally valid reason for failing to appear at deposition.

Plaintiff seeks sanctions in the amount of $2130 – three hours to prepare the motion and two hours to prepare a reply and attend the hearing, all at $340/hour, plus a filing fee of $60. The amount is reasonable and supported by the Declaration of Counsel.

Defendants and their attorneys of record, jointly and severally, are ordered to pay sanctions to Plaintiff, by and through counsel of record, in the amount of $2130.

Dated this 7th day of April, 2014

Hon. Elia Weinbach
Judge of the Superior Court