Case Number: BC519567    Hearing Date: April 28, 2014    Dept: 93

Plaintiff David Lockard’s Motion to Compel Defendant Cox Industrial Services, Inc. to Produce its Employee, Otto Kowal, for Deposition is deemed MOOT. Lockard’s Request for Sanctions against Cox Industrial Services, Inc. and its counsel, Ramsey Law,

P.C. is GRANTED.
The parties’ attorneys dispute whether the other side acted reasonably in communicating about scheduling Kowal’s deposition. Based on the motion and opposition papers, this is the relevant timeline of communication:
• December 20, 2013: Lockard served first notice of deposition, scheduling Kowal’s deposition for January 16, 2014. Motion, Exh. 2.
• January 14/15, 2014: Cox’s counsel indicated Kowal’s unavailability. Motion, Labriola Decl., ¶ 5; Oppo., Morris Decl., ¶ 4.
• January 15, 17 and 24, 2014: Lockard’s counsel requested alternative deposition dates. Motion, Labriola Decl., ¶¶ 5-6.
• January 24, 2014: Cox’s counsel responds indicting that discovery cannot move forward without receipt of Lockard’s responses to Cox’s written discovery. Motion, Exh. 3; Oppo., Morris Decl., ¶ 4.
• Early February 2014: Cox agrees to produce Kowal on March 4, 2014. Motion, Labriola Decl., ¶ 7.
• February 19, 2014: Cox states Kowal/its counsel is not available on March 4, 2014 and offers March 11, 2014 as an alternative date. Motion, Labriola Decl., ¶ 8; Oppo., Morris Decl., ¶ 5.
• February 28, 2014: Cox confirms the deposition for March 11, 2014. Motion, Exh. 4.
• March 7, 2014: Cox’s counsel indicates he is not available for the deposition due to an unexpectedly long running trial. Oppo., Exh. D.
• March 11, 2014: Kowal does not appear for his deposition. Motion, Labriola Decl., ¶ 9.
• March 12-17, 2014: The parties’ attorneys continue discussing deposition dates. Motion, Labriola Decl., ¶¶ 10-12.
• March 21, 2014: the instant motion was filed. Motion, Labriola Decl., ¶ 12.
The last communication between the attorneys prior to the filing of this motion was on March 17, 2014, when Lockard’s counsel asked for alternative deposition dates. Motion, Labriola Decl., ¶ 12. Cox failed to produce Kowal for three different deposition dates, but provided advance albeit short notice of the unavailability of Kowal and/or its counsel. Some gamesmanship was involved in that Cox delayed producing Kowal in order to obtain supplemental responses to its written discovery. This was without justification. Furthermore, Cox’s counsel did not communicate with Lockard’s counsel after March 17, 2014 until after the filing of the instant motion. It was reasonable for Lockard to file the instant motion after failing to hear from Cox for five days, and given the three earlier cancellations. Therefore, Lockard is entitled to recover his costs in bringing this motion, which was necessitated by the conduct of Cox and its counsel.
The amount requested by Lockard’s attorney appears to be reasonable and not overstated as is often the case. Therefore, pursuant to CCP section 2025.450(g)(1), defendant and/or defendant’s counsel of record is ordered to pay plaintiff and/or plaintiff’s counsel of record sanctions in the amount of $3,810.00 within 30 days of the date of this order.
Moving party is ordered to give notice.