Case Number: BC722308 Hearing Date: December 11, 2019 Dept: 61

Plaintiff Nike USA, Inc.’s Motion to Compel Deposition of Defendants 5860 West Jefferson, LLC, 5860 West Jefferson I, LLC, and Samitaur Constructs is GRANTED. Defendants must appear for their depositions within 30 days of this order. Sanctions are awarded against Defendants and their counsel in the amount of $2,250.

I. MOTIONS TO COMPEL DEPOSITION

A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).)

Nike moves to compel the depositions of Defendants 5860 West Jefferson, LLC, 5860 West Jefferson I, LLC, and Samitaur Constructs, on the grounds that they failed to appear for previously set depositions without justification. Nike presents the following narrative: Deposition notices were served on August 9, 2019, naming August 26 as the date of deposition. (Motion at pp. 5–6.) Defendants sought to delay deposition until early October. (Motion at p. 6.) Nike agreed to delay the deposition, and sought particular dates of availability in October while offering some of its own. (Motion at pp. 6–7.) Defendants responded that they were unavailable until after October 15, notwithstanding that some of the dates offered were in fact after October 15. (Motion at p. 7.) Nike then served an amended deposition notice, scheduling the deposition for October 18, 2019. (Motion at p. 8.) Defendants on October 2 let Nike know that the date was unavailable, but offered November 5, 6, or 7. (Motion at p. 8.) Nike agreed to November 6. (Motion at pp. 8–9.)

On October 31, Defendants notified Nike that their primary witness had “an unforeseen circumstance arise,” meaning that the November 6 date was unavailable. (Motion at pp. 8–9.) Defendants asked Nike if it was available on December 2 or 6. ( Motion at p. 9.) Nike objected on the grounds that travel arrangements had been made, and requested a more detailed explanation for the unavailability. (Motion at p. 9.) Defendants responded that the witness, Ed Wechtel, served clients unrelated to the dispute and that they were “unable to furnish” any additional information. (Motion at p. 9.) Nike stated that it was unavailable for the December dates that Defendants had offered and asked for additional deposition dates in early November. (Motion at pp. 10–11.) The parties have reached an impasse, and Nike now seeks to compel depositions on December 18.

Defendants do not generally contest this timeline, but argue that since no deposition and certificate of non-appearance was recorded or taken, they have not “fail[ed] to appear for examination” under Code of Civil Procedure § 2025.450. (Opposition at p. 6.) But Defendants present no authority for the proposition that a party seeking to compel a deposition must themselves appear and take a certificate of non-appearance when the other party has already made clear that they will not appear.

Defendants also argue that Nike failed to meet and confer. (Motion at pp. 6–7.) This is not accurate; the parties attempted to schedule a deposition, but Nike desired a date before December, and now seeks a court-ordered date of deposition.

Defendants reiterate that the witness who was to be deposed was made unavailable on the date in question, but cannot reveal the nature of that unavailability because doing so would reveal attorney-client confidences. (Evans Decl. ¶ 4.)

The court will grant the motion. Defendants have failed to provide information concerning the reasons for their unavailability on the date that they previously agreed to. Lawyers are ordinarily able to discuss their schedules without betraying confidential client communications, as Defendants’ counsel demonstrates in his own declaration. (Evans Decl. ¶ 2.) Given the long wait for deposition upon the notices that have been served, and Defendants’ failure to justify their appearance for the deposition dates agreed to, the motion is GRANTED, and Defendants must appear for deposition within 30 days of this order.

II. SANCTIONS

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.” (Code Civ. Proc. § 2025.450, subd. (g)(1).)

Nike asks for $6,750.00 in sanctions representing 12 hours of attorney work at $562.50 per hour. (Asfour Decl. ¶ 13.) The court awards $2,250 in sanctions against Defendants and their counsel.