Case Number: BC655676 Hearing Date: December 26, 2018 Dept: 47

Daniels, Fine, Israel, Schonbuch & Lebovits, LLP v. Larry Rabineau, et al.

MOTION TO COMPEL DEPOSITION SEEKING SANCTIONS

MOVING PARTY: Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP

RESPONDING PARTY(S): No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges it agreed with Defendants to share the costs of litigation regarding representation of a client in a personal injury lawsuit. Defendants have allegedly failed to pay their share of costs as agreed.

Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP moves to compel the deposition of Defendant Larry Rabineau and for sanctions.

TENTATIVE RULING:

Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP’s motion to compel the deposition of Defendant Larry Rabineau is GRANTED.

Plaintiff’s request for terminating sanctions and monetary sanctions is DENIED.

DISCUSSION:

Motion To Compel Deposition

Plaintiff moves to compel the deposition of Defendant Larry Rabineau, who failed to appear for his May 31, 2017, August 29, 2017 and November 18, 2018 deposition and has refused to respond to Plaintiff’s requests to schedule Defendant’s deposition.

CCP § 2025.450 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 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 or tangible thing described in the deposition notice.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document 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 or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

(c)

(1) 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.

. . .

(h) If that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent’s testimony would be taken pursuant to that order.

Here, Plaintiff submitted a sufficient meet and confer declaration. See Declaration of Parham Nikfarjam, ¶ 9; Exh. F.

Because Defendant has repeatedly failed to appear for his noticed depositions, Plaintiff is entitled to an order compelling Defendant’s deposition. [The Court notes that the Notices of Deposition did not specify any documents to be produced, so good cause for such production need not be shown.]

Plaintiff’s motion to compel the deposition of Defendant Larry Rabineau is GRANTED. Deposition to occur no later than January 10, 2019 at a reasonable time and place to be determined by moving party.

Plaintiff’s request for terminating sanctions striking Defendant’s answer is DENIED. A separately-noticed motion for terminating sanctions must be brought and, in any event, is premature. As set forth in CCP § 2025.450(h), if Defendant fails to obey the instant order compelling his deposition, Plaintiff may then seek terminating sanctions.

Plaintiff’s request for monetary sanctions is DENIED. Although an award of monetary sanctions appear to be appropriate, Plaintiff did not indicate that monetary sanctions were being sought in the notice of motion, as required by CCP § 2023.040, which provides:

A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought. (Emphasis added.)

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 26, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court