Re: Daniel Porter v. Fresno Community Hospital and Med. Ctr. Superior Court Case No. 15CECG03720 Hearing Date: March 28, 2018 (Dept. 503)

Motion: Defendants’ Motion to Compel Deposition of Margaret Verrees, M.D. and for Sanctions

Tentative Ruling:

To grant Defendants’ motion to compel. To impose sanctions in the amount of $555.00. Sanctions to be paid by Margaret Verrees, M.D., to the Law Offices of White Canepa LLP within 30 days after service of the Court’s order.

Explanation:

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Code Civ. Proc., §2025.010 emphasis added.) Code of Civil Procedure section 1987.1 provides for a motion to compel where a responding witness fails to comply with proper discovery requests for deposition. (See also Kennedy v. Superior Court (1998) 64 Cal.App.4th 674, 679 fn.2; Parker v. Wolters Kluwer U.S. (2007) 149 Cal.Ap.4th 285, 295-296.)

Here, Defendants seek to depose Margaret Verrees, M.D., a non-party in the case. Her testimony is relevant and appears reasonably calculated to lead to the discovery of admissible evidence. Dr. Verrees’ deposition was noticed for August 8, 2017, October 2, 2017, and February 2, 2018, and Dr. Verrees was properly served with notice. (Morrison Dec., filed 2/27/18, at ¶¶ 4, 8, 16-17 & Exs. A, D & M.) Dr. Verrees has refused to comply without valid objection. Sanctions

Where a non-party deponent fails to appear for a deposition, sanctions may be imposed. (Code Civ. Proc., §§2020.310, 2020.240, 2023.010; see also Temple Comm. Hosp. v. Sup.Ct. (1999) 20 Cal.4th 464, 476-477 [monetary sanctions are available against nonparties who “flout the discovery process”]; Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350-1351 [nonparty subject to monetary sanctions for noncompliance with deposition subpoena.) However, courts are generally only authorized to award sanctions for a moving party’s “reasonable expenses.” These expenses include the time that the moving party’s counsel spent in the preparation and argument of the motion. (Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.)

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Here, because Dr. Verrees has repeatedly failed to appear for her deposition with no justification, sanctions are warranted. Defense counsel requests $3,590.00 in sanctions. (Morrison Dec., filed 2/27/18, at ¶¶25-27.) The Court finds sanctions in the amount of $555.00, which represents three hours of attorney time at $185 per hour, reasonable and appropriate.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling Issued By: KAG on 03/27/18 (Judge’s initials) (Date)