2012-00136359-CU-PA

Brooke Parker vs. Amanda Chastain

Nature of Proceeding:    Motion to Compel Appearance at Deposition

Filed By:  Bertolino, Richard P.
Defendant’s Motion for an Order Compelling Self-represented Plaintiff to Appear at Her
Deposition is GRANTED. Defendant’s Request for Dismissal of the entire action is
DENIED.

Plaintiff has been self-represented since June of 2013. Prior to that date, defendant
served written discovery on the plaintiff’s counsel (form Interrogatories, Request for
Production of Documents).  Although moving party has attempted to obtain responses,
he has failed to make a motion to compel those responses, resorting instead to a
motion to dismiss the entire action based on plaintiff’s failure to provide discovery
responses.

On Feb. 20, 2014, this Court denied defendant’s prior motion to dismiss, holding
“Defendant contends a dismissal is warranted because plaintiff did not respond to
discovery and did not appear at her deposition.  The Code of Civil Procedure does not
provide for dismissal as an initial remedy [sanction] for a discovery violation.  A
dismissal of an action as a discovery sanction is generally available only if a party
disobeys a court order regarding the discovery.  See CCP 2030.300(e); 2023.030;
2025.450(h).”

Counsel for defendant has failed to obtain a Court Order that plaintiff respond to the
discovery, therefore no motion to dismiss will be considered.

Moving party defendant also requests an order that plaintiff appear for her deposition,
which has been noticed three times, and three times plaintiff has failed to appear.  In
none of those cases did moving party contact the plaintiff to schedule the deposition
for a mutually convenient date, nor even after the non-appearance to determine why
the plaintiff had not appeared.

The motion to compel plaintiff to appear and testify at her deposition is granted.

Plaintiff is ordered to appear for her deposition, which has already been noticed for
June 2, 2014.  Counsel is instructed to contact the self-represented plaintiff to
determine if plaintiff is available on that date and if not, to reschedule the deposition for
a mutually convenient date, not later than Friday, June 27, 2014.

Sanctions are denied, as the motion is not accompanied by a meet and confer
declaration stating that the petitioner has contacted the deponent to inquire about the
nonappearance. Code Civ. Proc. § 2025.450(b)(2); see also 2016.040.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.