Safeway Inc. v. Brad Bothell CASE NO. 113CV256748
DATE: 27 June May 2014 TIME: 9:00 LINE NUMBER: 20
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 26 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 27 June 2014, the motion of Safeway Inc., Plaintiff, to Compel Discovery and for Monetary Sanctions was argued and submitted.

Defendant did not file formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).

I. Statement of Facts

On several occasions, including November 25, 2013, Defendant entered the premises of Safeway stores in Northern California to solicit signatures from Safeway customers entering an exiting the premises.

On November 26, 2013, Safeway filed a complaint for trespass, also seeking a declaratory judgment and injunctive relief. On November 27, 2013, Safeway’s ex parte application for a Temporary Restraining Order prohibiting Defendant from entering any Safeway store in Santa Clara County was granted. A preliminary injunction was granted on January 7, 2014.

II. Discovery Dispute

On March 4, 2014, Safeway served Defendant with a Notice of Deposition for March 20, 2014. Prior to the March 20 deposition date, counsel for Safeway attempted to meet and confer with Defendant regarding his deposition. During the conversation with Safeway’s counsel, Defendant indicated that he would simply not appear at the deposition because he was “afraid of” Safeway’s counsel. Defendant did not appear to his deposition on March 20, 2014.

Safeway’s counsel attempted to meet and confer with Defendant, on April 2, 2014, to resolve any issues that might prevent the taking of Defendant’s deposition. Defendant refused to propose any alternative dates, locations, or anything else that would facilitate his deposition.

On April 2, 2014, Safeway re-noticed Defendant’s deposition for April 24. When Safeway’s counsel was able to contact Defendant regarding the new deposition date, Defendant abandoned his claim that he was afraid of Safeway’s counsel and stated for the first time that he lacked “gas money.” Defendant did not appear to his second deposition date on April 24, 2014.

III. Analysis

A. Motion to Compel

Cal. Code. Civ. Proc. § 2025.280(a) provides that a properly-served notice of deposition notice “is effective to require any deponent who is a party . . . to attend and to testify.” Similarly, Cal. Code Civ. Proc. § 2025.450(a) provides that where a party fails to appear at a properly noticed deposition, without having served a valid objection, the party giving the notice may move for an order compelling the deponent’s attendance and testimony.

A motion under Code Civ. Proc. § 2025.450(a) shall be accompanied by a meet and confer declaration under section 2016.040, or when the deponent fails to attend the deposition, the motion shall be accompanied by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance. Code Civ. Proc. § 2025.450(b)(2).

Furthermore, where a party deponent fails to appear at a properly noticed deposition, the court may impose sanctions even if his failure to appear was entirely inadvertent. Code Civ. Proc. § 2025.450(g)(1).

Safeway properly served deposition notices on Defendant Brad Bothell twice. Defendant has refused to appear. In addition, Safeway met and conferred with Defendant on multiple occasions. Safeway has contacted the deponent and inquired about the nonappearance. All of Safeway’s efforts to accommodate Mr. Bothell and to take Mr. Bothell’s deposition have been rebuffed.

Based on the foregoing, Safeway Inc.’s Motion to Compel Discovery is GRANTED. Defendant is to appear for a deposition in a code compliant location within 20 days of the date of the filing of this Order.

B. Monetary Sanctions

Plaintiff makes a request for monetary sanctions. The request is code-compliant.

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” See Rule of Court 2.30.

The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a), where 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.

The Court suggests the proper procedure would be to put the following language in the notice of the motion:

“If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with all Court rules. If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a) which 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.”

In support of the request for sanctions, Plaintiff cites Code of Civil Procedure, sections 2025.450(g) and 2025.450(j).

Section 2025.450(g)(1) provides that “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 . . . , 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. section 2025.450(j) was a former section that has been included in sections (a), (b), (c), and (d) in the 2004 addition to the code. It is not appear to exist at the present time.

Counsel for Safeway has made reasonable efforts to resolves these issues informally, all of which have been unsuccessful. Defendant has not opposed the motion to compel and the request for monetary sanctions. Accordingly, Defendant has not set forth evidence that they acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Plaintiff requests monetary sanctions in the amount of $1,000.00 and lists the expenses associated with that amount in their memorandum of points and authorities. These amounts appear reasonable.

Based on the foregoing, the request for monetary sanctions is GRANTED. Defendant is to pay the sum of $1000.00 to counsel for Plaintiff within 20 days of the date of the filing of this Order.

IV. Order

Accordingly, Plaintiff’s Motion motion to compel Defendant to appear for a deposition is GRANTED. Defendant is to appear for a deposition in a code compliant location within 20 days of the date of the filing of this Order.

The request for monetary sanctions is GRANTED. Defendant is to pay the sum of $1000.00 to counsel for Plaintiff within 20 days of the date of the filing of this Order.