Case Number: BC640377 Hearing Date: March 04, 2019 Dept: 4B

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO COMPEL DEFENDANT’S DEPOSITION AND MONETARY SANCTIONS; GRANTED

On November 10, 2016, Plaintiff Maria Ponce (“Plaintiff”) filed this action against Defendant Bodega Latina Corporation dba El Super (“Defendant”) for premises liability and general negligence relating to a November 14, 2014 slip and fall. Plaintiff moves to compel Defendant’s deposition and monetary sanctions.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. (Code Civ. Proc., § 2025.410, subd. (c).) “If, after service of a deposition notice, a party . . . without having served a valid objection . . . 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 notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).) “In scheduling depositions, reasonable consideration should be given to accommodating schedules or opposing counsel and of the deponent, where it is possible to do so without prejudicing the client’s rights.” (L.A. Sup. Court Local Rules, Appendix 3.A(e)(2).)

On August 24, 2018, Plaintiff unilaterally noticed Defendant’s deposition for September 17, 2018. The parties agreed to take the deposition off calendar and that Defendant would provide available dates. On October 5, 2018, Plaintiff’s counsel requested available dates, but Defendant provided none. On October 12, 2018, Plaintiff’s counsel then unilaterally noticed Defendant’s deposition for November 14, 2018. (Declaration of Henry John Matusek II, ¶ 4.) On November 8, 2018, new defense counsel contacted Plaintiff’s counsel saying he was taking over Defendant’s case, asking for a continuance of Defendant’s deposition, and promising to provide available dates by the following Monday. (Matusek Decl., ¶ 5.) On December 3, 2018, Plaintiff’s counsel noticed Defendant’s deposition for December 26, 2018. (Matusek Decl., ¶ 6.) On December 18, 2018, Defendant served a written objection that counsel was having surgery on December 26, 2018 and required six to eight weeks to recover. (Matusek Decl., ¶ 7.) On December 26, 2018, Plaintiff’s counsel appeared for Defendant’s deposition and had a court reporter present, who took a certificate of non-appearance. (Matusek Decl., ¶ 8.) Plaintiff moves to compel Defendant’s deposition and monetary sanctions.

Plaintiff’s counsel states that on December 26, 2018, she had surgery on her right ankle. (Declaration of Norma Pedroza Chavez, ¶ 3.) She states that she is the only Spanish-speaking attorney at defense counsel’s office and is the only one who can communicate efficiently with the non-English speaking employees for Defendant. (Chavez Decl., ¶ 4.) Another attorney from defense counsel’s firm states the firm then made arrangements to get the depositions completed while counsel was indisposed, and on January 2, 2019, offered a deposition date of January 31, 2019 or on a Tuesday or Thursday of the third or fourth week of the month, but Plaintiff’s counsel refused to set new dates without a court order and payment of the non-appearance fee. (Mkryan Decl., ¶¶ 7, 9.)

In Reply, Plaintiff’s counsel states defense counsel never presented a valid objection or reason for refusing to appear for deposition.

After properly noticing Defendant’s deposition, Plaintiff’s counsel twice agreed to take the deposition off calendar to accommodate Defendant’s requests. After Defendant failed to provide available dates as promised, Plaintiff’s counsel unilaterally noticed Defendant’s deposition for December 26. Defense counsel served the written objection to the deposition on December 18, with a legitimate reason she was not available – surgery. Plaintiff’s counsel did not tell defense counsel that he planned to go forward with the deposition on December 26, regardless of her surgery.

All parties agree the deposition should go forward, and it needs to occur soon given the trial date of May 13, 2019. Accordingly, the Motion to compel Defendant’s deposition is GRANTED and Defendant is ordered to appear for deposition within twenty (20) days of the date of this Order.

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).) On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent. (Code Civ. Proc., § 2025.450, subd. (g)(2).)

Both parties’ counsel failed to cooperate in good faith to ensure the deposition takes place. Plaintiff’s counsel knew defense counsel could not attend a deposition on December 26, but spent the money on the non-appearance anyway. Defense counsel should have known that a third failure to appear for a notice deposition would not be acceptable to Plaintiff. Both sides’ counsel should have had a phone call much earlier to compare available dates and figure out a mutually acceptable date, instead of noticing dates that ended up being not available, objecting to dates without immediately offering available dates, and having staff send emails.

Plaintiff’s request for monetary sanctions is GRANTED in part and imposed against Defendant and defense counsel, jointly and severally, in the reduced amount of $860.00 for two hours at Plaintiff’s counsel’s hourly rate of $400.00 and the $60.00 filing fee, to be paid within twenty (20) days of the date of this Order. Plaintiff’s counsel understandably did not think he could rely on another promise to provide deposition dates. However, Plaintiff’s counsel was partly at fault by not trying to resolve the dispute with an early phone call to defense counsel. The request for reimbursement for the court reporter and certificate of non-appearance is denied. It was clear that Defendant was not going to appear at the December 26 deposition and Plaintiff could have brought this Motion to compel without the certificate of non-appearance.

Moving party to give notice.