Case Number: BC634779 Hearing Date: June 18, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Ezzat Hanna,

Plaintiff,

v.

David Allan Minnick, et al.,

Defendants.

Case No.: BC634779

Hearing Date: June 18, 2018

[TENTATIVE] order RE:

defendant’S motion for order compelling plaintiff’s attendance and testimony at deposition

BACKGROUND

Defendant Joseph Duc Cao (“Defendant”) moves for an order compelling plaintiff Ezzat Hanna (“Plaintiff”) to submit to deposition.

LEGAL STANDARD

Pursuant to CCP §2025.450, if after service of a deposition notice, a party to the action, without having served a valid objection, fails to appear for examination, or proceed with it, or to produce for inspection any document, the party giving notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document. (CCP §2025.450(a).) A motion to compel the deposition of a party to the action must be accompanied by a meet and confer declaration, or, when the deponent failed to attend the deposition, a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (CCP §2025.450(b)(2).)

DISCUSSION

On May 10, 2017, part one of Plaintiff’s deposition was taken. The parties agreed that the deposition would resume at a later date. Defendants served on Plaintiff a Notice of Taking Deposition (second session), setting the deposition for November 13, 2017. Plaintiff’s counsel informed defense counsel that the proposed date did was inconvenient. Defendant continued the deposition a few more times because several scheduling conflicts arose. On March 23, 2018, Defendant noticed the final notice of deposition setting the deposition for April 13, 2018. On April 13, 2018, Plaintiff’s counsel, and counsel for Defendant were present, but Plaintiff did not appear. Defendant took a Certificate of Nonappearance. (Def. Exh. H.)

In opposition, Plaintiff states that Defendant failed to engage in good faith efforts to meet and confer before filing this motion. After the non-appearance, Plaintiff’s counsel learned that Plaintiff’s failure to appear was due to a mistake in communication. Counsel immediately contacted Defendant to attempt to find new dates for the deposition, but Defendant did not respond. Plaintiff’s counsel sent a letter to Defense counsel on May 23, 2018 again apologizing for the calendaring error and enclosed two checks to reimburse Defendant’s costs for the non-appearance. (Pl. Exh. 3.) Despite Plaintiff’s efforts to achieve an informal resolution of this matter, Defendant has moved forward with this motion to compel.

Based on the foregoing, the Court grants Defendant’s motion to compel Plaintiff’s second session of deposition. Plaintiff is ordered to appear for deposition within twenty (20) days of notice of this order at a date, time, and location to be noticed by Defendant.

Defendant also requests sanctions against Plaintiff and his counsel. Sanctions have been sufficiently noticed against Plaintiff and counsel. The Court would ordinarily award sanctions for this motion, but Plaintiff’s counsel has already compensated Defendant for the non-appearance. Further, the record before the Court shows that Plaintiff made multiple attempts to resolve this issue informally, but Defendant failed to respond to these informal alternatives. Under the circumstances, the Court finds that Defendant is not entitled to any further compensation for this motion. There were multiple opportunities to resolve this matter before bringing the instant motion, which could have avoided the expense of bringing this motion. As such, the Court finds that sanctions would be unjust.

Conclusion and Order

Defendant’s motion to compel the second session of Plaintiff’s deposition is granted. Plaintiff is ordered to appear for deposition within twenty (20) days of notice of this order at a date, time, and location to be noticed by Defendant.

Defendant’s request for sanctions is denied.

All parties should note that the hearing on this motion and all future court dates will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

Defendant is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: June 18, 2018 ___________________________

Elaine Lu
Judge of the Superior Court