Lawzilla Additional Information: Plaintiff is represented by attorney Peter Cho

Case Number: 18STCV02610 Hearing Date: January 21, 2020 Dept: 28

Motion to Compel Deposition

Having considered the moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On October 26, 2018, Plaintiffs Agustin Diaz Ramirez and Juan Morales filed a complaint against Defendant Chanh Minh Lam (“Defendant”). The complaint alleges motor vehicle and general negligence for an automobile collision that occurred on December 16, 2016.

On December 6, 2019, Defendant filed a motion to compel the deposition of Plaintiff Agustin Diaz Ramirez pursuant to California Code of Civil Procedure section 2025.450.

Trial is set for April 24, 2020.

PARTY’S REQUESTS

Defendant asks the Court to compel Plaintiff Agustin Diaz Ramirez’s appearance and testimony at a deposition on February 3, 2020 due to her failure to appear at a noticed deposition.

Defendant also asks the Court to impose $442.15 in monetary sanctions against Agustin Diaz Ramirez and her counsel of record for their abuse of the discovery process.

LEGAL STANDARD

California Code of Civil Procedure section 2025.450, subdivision (a) provides: “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, or to proceed with it, or to produce for inspection any document . . . 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 . . . described in the deposition notice.”

California Code of Civil Procedure section 2025.450, subdivision (b) provides: “A motion under subdivision (a) shall comply with both of the following:

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.

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 about the nonappearance.”

California Code of Civil Procedure section 2025.450, subdivision (c) provides, “(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . 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.”

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010, subd. (d).)

California Rules of Court, rule 3.1348, subdivision (a) 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.”

DISCUSSION

On December 11, 2018, Defendant served a notice of taking the deposition of Plaintiff Agustin Diaz Ramirez by U.S. mail setting the deposition date for June 19, 2019, which was a date Plaintiff Agustin Diaz Ramirez agreed on. (Bilbrew Decl., ¶ 3.) Upon Plaintiff Agustin Diaz Ramirez’s request, Defendant continued the deposition date to September 13, 2019. (Bilbrew Decl., ¶ 4, Exh. A.) On September 11, 2019, Plaintiff Agustin Diaz Ramirez’s counsel told Defendant’s counsel that Plaintiff Agustin Diaz Ramirez was in Mexico and the September 13, 2019 deposition date could not go forward. (Bilbrew Decl., ¶ 5.) Plaintiff Agustin Diaz Ramirez failed to appear for his deposition. (Bilbrew Decl., ¶ 6.)

The Court finds the motion must be granted. Plaintiff Agustin Diaz Ramirez was properly served with the deposition notice and Defendant continued the deposition date pursuant to Plaintiff Agustin Diaz Ramirez’s request. Plaintiff Agustin Diaz Ramirez failed to appear at the agreed upon September 13, 2019 deposition date. There is no evidence showing Plaintiff acted with a substantial justification or that there are circumstances showing an imposition of sanctions would be unjust.

Defendant’s request for $443.15 for this straight-forward motion is unreasonable. Rather, the Court finds $350 to be a reasonable amount of sanctions to be imposed against Plaintiff when considering this simple and unopposed motion.

/CONCLUSION

The motion is GRANTED.

Plaintiff is ordered to appear at a deposition on February 3, 2020 at 10:00 a.m. at 655 North Central Avenue, Suite 1125, Glendale, California 91203-1434.

Plaintiff and Plaintiff’s counsel of record are ordered to pay Defendant $350, jointly and severally, within 30 days of this ruling.

Defendant is ordered to give notice of this ruling.