Lawzilla Additional Information:
Per the Los Angeles court records defendants are represented by attorney Edye Hill from Ford Walker Haggerty and Behar who is being sanctioned by the court.

Case Number: BC633096 Hearing Date: April 09, 2018 Dept: 92

BRENDA CARATACHEA,

Plaintiff(s),

vs.

CALIFORNIA BEVERAGE MARKETING CO., ET AL.,

Defendant(s).

CASE NO: BC633096

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF DEFENDANT LE

Dept. 92

1:30 p.m.

April 9, 2018

Plaintiff noticed the deposition of Defendant Seog Joo Le on 12/13/17, setting his deposition for 1/04/18. On 1/03/18, without explanation and only in response to Plaintiff’s counsel’s inquiry, Defense Counsel indicated the deposition would not go forward. Plaintiff wrote and requested deposition dates, but Defendant did not respond. On 1/12/18, Plaintiff again noticed Defendant’s deposition, this time for 2/09/18. On 2/08/18, again only in response to Plaintiff’s attempt to confirm the deposition, Defense Counsel indicated the deposition would not go forward; again, no reason was stated. Plaintiff went forward with the deposition and took a certificate of non-appearance. On 3/15/18, Plaintiff filed this motion to compel.

CCP §2025.450(a) provides:

(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.

Defendant argues the motion should be denied on various grounds, each of which will be discussed here. First, Defendant contends the motion is moot because he has offered three dates in April when he is available and willing to be deposed. Defendant does not cite any authority for the position that a motion to compel becomes moot if a party indicates a willingness to sit for deposition. In light of the prior failure to appear for duly noticed depositions, Plaintiff is entitled to a court order compelling the deposition; such order comes with ramifications not present if the parties merely voluntarily agree to a deposition date.

Defendant next argues that depositions were improperly set unilaterally. Defendant does not cite any authority for the position that a party cannot unilaterally set a deposition. This is particularly so when Plaintiff attempted, after the first notice of deposition, to obtain dates from Defendant, and Defendant did not respond. Defendant’s third argument is that Plaintiff failed to show “bad faith.” There is no such requirement in the Code.

Defendant’s fourth argument is that Plaintiff has not suffered any prejudice. Again, there is no requirement in the Code that a party demonstrate prejudice from the non appearance prior to filing a motion to compel.

Defendant’s fifth argument is that Plaintiff failed to provide sufficient notice of the IDC set in connection with this motion. An IDC is not required when a party moves to compel an initial deposition. The fact that Plaintiff attempted to go above and beyond what was required cannot support denial of the motion.

The motion to compel is granted. Within 5 days of this order, Plaintiff’s Counsel and Defense Counsel are ordered to meet and confer to attempt to reach agreement on a time, date, and location for Defendant’s deposition. If Counsel are unable to agree, Plaintiff’s Counsel may set the deposition on Plaintiff’s Counsel’s terms with five days’ notice to Defense Counsel (time extended by Code if notice by method other than personal service).

Plaintiff seeks sanctions against Defendant and his attorney of record in the amount of $2500 for misuse of the discovery process. Sanctions are mandatory unless the opposing party acted with substantial justification or sanctions would be unjust. §2025.450(c the day before each deposition. The Court finds sanctions are appropriate.

The Court has reviewed the Declaration of Counsel in support of the motion, and finds the request for five hours of time to meet and confer, prepare the moving papers, and appear at the hearing is reasonable. The Court reduces the billing rate from $500/hour to $350/hour.

Defendant Seog Joo Le and his attorneys of record, jointly and severally, are ordered to pay sanctions to Plaintiff, by and through her attorney of record, in the total amount of $1750, within twenty days.

Moving party is ordered to give notice.