Case Number: BC721910 Hearing Date: October 23, 2019 Dept: 4A

Motion for Order Compelling Plaintiff’s Attendance and Testimony at Deposition; Request for Monetary Sanctions

Having considered the moving papers, the Court rules as follows. No opposition was filed.

BACKGROUND

On September 14, 2018, Plaintiff Antonio Salazar (“Plaintiff”) filed a complaint against Defendant Frank Garcia (“Defendant”) alleging motor vehicle and general negligence arising from an automobile collision that occurred on September 15, 2016.

On September 10, 2019, Defendant filed the subject motion to compel Plaintiff’s attendance and testimony at deposition.

Jury trial is currently set for March 16, 2020.

PARTIES REQUESTS

Defendant requests that the Court issue an order compelling Plaintiff Antonio Salazar to attend and testify at deposition on November 13, 2019 at 10:00 a.m. at Defendant’s counsel’s office located at 655 N. Central Avenue, Suite 1125, Glendale, CA 91203-1434.

Defendant also requests the Court to impose $443.15 in monetary sanctions against Plaintiff and/or Plaintiff’s attorney, Michael G. Rix, Esq., for necessitating the filing of the motion.

LEGAL STANDARD

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action.” (Code Civ. Proc. § 2025.010.) “An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.” (Code Civ. Proc. § 2025.270, subd. (a).)

“The party who prepares a notice of deposition shall give the notice to every other party who has appeared in the action. The deposition notice, or the accompanying proof of service, shall list all the parties or attorneys for parties on whom it is served.” (Code Civ. Proc. § 2025.240, subd. (a).) “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action . . . to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc. § 2025.280, subd. (a).)

“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.” (Code Civ. Proc. § 2025.410, subd. (a).) If an objection is made three calendar days before the deposition date the objecting party must make personal service of such objection pursuant to Code of Civil Procedure section 1011 on that party that gave notice of the deposition. (See Code Civ. Proc. § 2025.410, subd. (b).)

“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, . . . the party giving the notice may move for an order compelling the deponent’s attendance and testimony. . . .” (Code Civ. Proc. § 2025.450, subd. (a).) “(1) 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. (2) 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[1] about the nonappearance.” (Code Civ. Proc. § 2025.450, subd. (b)(1)-(2).)

DISCUSSION

On May 28, 2019, Defendant served Plaintiff with a Notice of Taking Deposition of Plaintiff, setting the deposition for August 15, 2019. (Declaration of Deborah K. Peterson (“Peterson Decl.”), ¶ 2, Exh. A.) Neither Plaintiff nor Plaintiff’s counsel appeared for the scheduled deposition. (Id., ¶ 3.)

On August 15, 2019, Defendant’s counsel served a letter on Plaintiff’s counsel inquiring as to why neither counsel nor Plaintiff appeared for deposition on August 15, 2019. (Id., ¶ 4, Exh. B.) Defendant’s counsel requested that Plaintiff’s counsel contact her within five days to discuss the rescheduling of Plaintiff’s deposition. (Id.)

That day, Plaintiff’s counsel contacted Defendant’s counsel, and informed her that he did not have the deposition on calendar. (Id., ¶ 5.) Defendant’s counsel asked Plaintiff’s counsel to contact Defendant’s counsel’s assistant immediately to reschedule the deposition. (Id.) To date, Plaintiff’s counsel has not contacted Defendant’s counsel or her assistant, and Plaintiff has not appeared or testified at deposition. (Id.)

Based upon the facts before the Court, Defendant is plainly entitled to an order compelling Plaintiff to appear for his deposition. Plaintiff has failed to oppose the motion, and has otherwise failed to explain his absence from the previously noticed deposition.

Accordingly, Defendants’ motion is GRANTED.

“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).)

Defendant requests $443.15 ($143.75/hr. × 2 hrs. + $61.65 filing fee + $94.00 Court Call expense) for bringing the motion against Plaintiff. (Peterson Decl., ¶ 6.) The Court finds these monetary sanctions to be reasonable.

Therefore, the Court orders Plaintiff Antonio Salazar to appear for deposition on November 13, 2019 at 10:00 a.m. at Defendant’s counsel’s office located at 655 N. Central Avenue, Suite 1125, Glendale, CA 91203-1434, unless the parties stipulate to a mutually convenient date, time, and location.

The Court also orders Plaintiff Antonio Salazar and his counsel of record, Michael G. Rix, Esq., to pay Defendant $443.15, jointly and severally, within 30 days of notice of this order.

Defendant is ordered to give notice of this ruling.

[1] “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue.” (Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124.) When counsel fails to consider rescheduling a deposition and instead files a motion to compel, sanctions have been found to be appropriate against opposing counsel for filing an unnecessary motion. (Id. (imposing sanctions against deposing counsel when opposing counsel expressed a willingness to reschedule at a mutually convenient date).) Sanctions are appropriate when counsel disregards her obligation to attempt to informally resolve a discovery issue. (Id.)