Case Number: BC721048 Hearing Date: August 21, 2019 Dept: 4A

Motion to Compel Deposition

Having considered the moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On September 7, 2018, Plaintiffs Judy Lauzon and Luke Lauzon (“Plaintiffs”) filed a complaint against Defendants Association of South Bay Plastic Surgeons Medical Group and Lisa Jewell, M.D. (“Defendants”) alleging medical malpractice and loss of consortium for deficient treatment performed on September 20, 2017.

On July 25, 2019, Defendants filed a motion to compel Plaintiff Judy Lauzon’s attendance and testimony at a deposition pursuant to California Code of Civil Procedure section 2025.450, subdivision (a).

Trial is set for March 9, 2020.

PARTY’S REQUESTS

Defendants request that the Court compel Plaintiff Judy Lauzon to appear and testify at a deposition within 20 days of the hearing on this motion due to Plaintiff Judy Lauzon’s failure to appear at her deposition.

Defendants also request the Court to compel Plaintiff Judy Lauzon and her counsel of record to pay $1,320 in monetary sanctions for bringing this motion.

LEGAL STANDARD

California Code of Civil Procedure section 2025.450, subdivision (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.”

California Code of Civil Procedure section 2025.450, subdivision (b) provides: “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.”

California Code of Civil Procedure section 2025.450, subdivision (c) provides, “(1) If a motion under subdivision (a) 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.”

Under California Code of Civil Procedure section 2023.030, subd. (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.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010, subd. (d).)

California Rules of Court, rule 3.1348, subdivision (a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

DISCUSSION

On November 16, 2018, Defendants served a notice of taking deposition on Plaintiff Judy Lauzon by U.S. Mail setting a deposition date of January 16, 2019. (Franklin Decl., ¶ 3, Exh. A.) This deposition was continued four times due to either Plaintiff Judy Lauzon’s unavailability or a courtesy because of a substitution of counsel. (Franklin Decl., ¶¶ 4-5, 7-9, Exh. B-E, G.) A deposition date was finally set for July 11, 2019. (Franklin Decl., ¶ 9, Exh. H.) Plaintiff Judy Lauzon said she would try to attend the deposition. (Franklin Decl., ¶ 10.) Plaintiff Judy Lauzon failed to appear at the July 11, 2019 deposition. (Franklin Decl., ¶ 11, Exh. I.)

The Court finds that Plaintiff Judy Lauzon failed to appear for her deposition without providing a valid objection. Thus, this motion is properly granted. There is no indication that Plaintiff July Lauzon acted with a substantial justification or that an imposition of sanctions is unjust.

Defendants’ request for $1,320 in monetary sanctions consists of .5 hours in attending the deposition, 2.1 hours preparing this motion, and 4 hours in traveling to and appearing at the hearing at a rate of $200 an hour. (Franklin Decl., ¶ 16.) Assuming that defense counsel in fact attends the hearing on this matter, the Court finds this amount to be a reasonable amount of sanctions to be imposed against Plaintiff Judy Lauzon and her counsel of record for their abuse of the discovery process. If there is no hearing because the parties submit on the Court’s tentative ruling, the amount of sanctions will be reduced by $800 to $520.

The motion is GRANTED.

Plaintiff Judy Lauzon is ordered to appear and testify at a deposition within 30 days of this order on a date mutually agreeable with Defendants.

Plaintiff Judy Lauzon and Plaintiff Judy Lauzon’s counsel of record are ordered to pay Defendants the pertinent sanctions amount within 30 days of this order, jointly and severally.

Defendants are ordered to give notice of this ruling.