Case Number: BC631970 Hearing Date: May 07, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

david issapour,

Plaintiff,

vs.

peter t. brown, et al.,

Defendants.

Case No.:

BC 631970

Hearing Date:

May 7, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFF’S MOTION TO COMPEL PETER T. BROWN, ESQ. TO ATTEND AND GIVE TESTIMONY AT DEPOSITION; AND FOR SANCTIONS IN THE AMOUNT OF $3,710

AND RELATED CROSS-ACTIONS

Factual Background

Plaintiff and Cross-Defendant David Issapour (“Issapour”) moves to compel Defendant and Cross-Complainant Peter T. Brown (“Brown”) to attend his deposition. No opposition to the motion was filed.

Issapour served a notice of deposition for Brown set for July 25, 2017. (Moghaddami Decl., ¶ 2, Ex. A.) After meeting and conferring, the deposition was reset for August 17, 2017. (Id. at ¶ 4, Ex. B.) Brown failed to appear and a certificate of non-appearance was issued. (Id. at ¶ 5, Ex. C.) The parties participated in an informal discovery conference, and as a result, Brown provided a doctor’s note from his doctor stating that he could be deposed in January 2018. (Id. at ¶ 7.) Issapour then served a notice of deposition for Brown on January 10, 2018 setting the deposition for February 14, 2018. (Id. at ¶ 9, Ex. G.) Brown served objections to the notice on February 9, 2018. (Id. at Ex. H.) On February 12, 2018, counsel for Issapour sent a meet and confer letter to counsel for Brown regarding the deposition. (Id. at ¶ 11, Ex. I.) Brown subsequently failed to appear for deposition, and a certificate of nonappearance for Brown was issued on February 14, 2018. (Id. at ¶ 12., Ex. J.)

Discussion

Any party may obtain discovery by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc. § 2025.010.) Service of a proper deposition notice is “effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc. § 2025.280.) If, after service of a deposition notice, a party or party-affiliated deponent fails to appear or to proceed with the examination without having served a valid objection, the party noticing the deposition may move for an order compelling the deponent’s attendance and testimony (Code Civ. Proc. § 2025.450(a).)

The Court finds that a proper deposition notice was served on Brown, and it required Brown to attend and to testify at his scheduled deposition. The Court also finds that Brown’s objections were not valid. For one, pursuant to Code of Civil Procedure section 2025.410(b), written objections must be served at least 3 calendar days prior to the deposition by personal service. Although the objections were served 3 calendar days prior to the scheduled deposition, the objections were not served personally but instead were served via mail and fax. (Moghaddami Decl., Ex. H.) Moreover, the substance of the objections is not well-taken. The objection that counsel for Issapour was under “a mistaken belief that a specific time period was established for the deposition of Peter T. Brown” is not a valid or proper objection. The evidence establishes that counsel for Issapour had a reasonable basis to believe that Brown would be available for deposition in or after January 2018. (Id., Ex. E.) The objection that the proof of service misidentifies one of the attorneys for Brown is also meritless, as there is no indication that any attorney representing Brown was not served with notice of the deposition. Lastly, the objection that the document production necessitates a notice to consumer is unsupported by citation to legal authority. Code of Civil Procedure section 2025.280, subdivision (a) explicitly provides that a party can be compelled by a deposition notice to produce documents.

In light of the above and in light of Brown’s nonopposition, the Court grants the motion to compel Brown’s deposition. The Court further grants Issapour’s request for sanctions but subtracts from the total the time anticipated to read the opposition and drafting a reply. Accordingly, the Court awards monetary sanctions in the amount of $3,035.00 to Issapour. (Code Civ. Proc., § 2025(j).)

Conclusion

Based on the foregoing, Issapour’s motion to compel Brown to attend and to testify at deposition is granted. The Court orders Brown to appear for deposition on May 11, 2018 at 10:00 a.m. at the offices of counsel for Issapour (or at any other mutually agreeable date and time prior to the trial). The Court further orders Brown to pay to Issapour monetary sanctions in the amount of $3,035.00 within 30 days of this Order.

Issapour is ordered to give notice.

DATED: May 7, 2018 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court