Case Number: BC666188 Hearing Date: October 07, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

graciela anguiano, et al.,

Plaintiffs,

v.

sms transportation services, inc., et al.,

Defendants.

Case No.: BC666188

Hearing Date: October 7, 2019

[TENTATIVE] order RE:

defendants’ motion to compel plaintiff’s deposition

BACKGROUND

Plaintiff Graciela Anguiano (“Plaintiff”) filed this action against Defendant SMS Transportation Services, Inc. (“Defendant”) following a motor vehicle collision. Defendant moves to compel Plaintiff’s deposition. Plaintiff opposes the motion. The motion is granted.

LEGAL STANDARD

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent to attend and testify at deposition. (Code Civ. Proc., §2025.450, subd. (a).)

DISCUSSION

Defendant has the right to take Plaintiff’s deposition and is entitled to take Plaintiff’s deposition without leave of court. (See Code Civ. Proc., § 2025.210, subd. (a).) Defendant noticed Plaintiff’s deposition for August 27, 2019. (Declaration of Roy D. Goldstein, Exh. #1.) Plaintiff objected to the deposition notice on the ground that Plaintiff’s counsel was not available on that date. (Declaration of Babak Kheiri, Exh. B.) A party may object to a deposition notice based on an “error or irregularity” in the deposition notice. (Code Civ. Proc., § 2025.410, subd. (a).) Plaintiff’s counsel’s unavailability is not an error or irregularity in the deposition notice. Accordingly, Plaintiff’s objection was not valid. If Plaintiff sought to move the date of the deposition, Plaintiff should have sought a protective order. (Code Civ. Proc., § 2019.020, subd. (b)(2).) Further, Defendant states that he has been unable to obtain dates from Plaintiff on which Plaintiff is available for deposition. (Declaration of Roy D. Goldstein, ¶ 4.) Accordingly, the Court finds good cause to grant the motion.

In opposition, Plaintiff’s counsel represents that Plaintiff is incarcerated, which means that Defendant cannot obtain Plaintiff’s deposition absent a court order under Code of Civil Procedure section 1995. Plaintiff’s counsel’s representation lacks foundation because his declaration does not make clear how he knows that his client is incarcerated. Regardless, if true, Plaintiff’s counsel could have stipulated with Defendant’s counsel for such an order and coordinated schedules, had Plaintiff’s counsel responded.

Defendant requests sanctions. The Court concludes that sanctions are warranted per Code of Civil Procedure, section 2025.450, subdivision (g)(1). The Court imposes sanctions against Plaintiff and her counsel of record, B&D Law Group, jointly and severally, in the amount of $585, which represents three hours of attorney time $175 per hour, plus the $60 filing fee.

CONCLUSION AND ORDER

Defendant’s motion to compel Plaintiff’s deposition is granted. Plaintiff shall appear for a deposition within 45 days of notice of this order unless the parties stipulate to a different date. This schedule affords the parties sufficient time to prepare a stipulation or noticed motion to take Plaintiff’s deposition in custody. Plaintiff and her counsel of record, B&D Law Group, jointly and severally, are ordered to pay sanctions in the amount of $585 to Defendants, by and through counsel, within 30 days of service of notice of this order. Defendant shall provide notice and file proof of such with the Court.

DATED: October 7, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court