Case Number: BC579390 Hearing Date: June 06, 2018 Dept: 7

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA; MOTION GRANTED

On April 21, 2015, Plaintiff Fatemeh Kermani (“Plaintiff”) filed this action against Defendants Best Way Transportation and Los Angeles ORT College (collectively, “Defendants”) for motor vehicle and general negligence relating to a July 31, 2014 automobile accident.

On March 15, 2018, Plaintiff served a deposition subpoena on Karine Osmanyan (“Osmanyan”), a necessary non-party witness. (Declaration of Dmitriy Aristov, ¶ 3.) Osmanyan has not served any objections to the subpoena, has not contacted Plaintiff’s counsel, did not request a continuance of the deposition, and twice failed to appear for the noticed deposition. (Aristov Decl., ¶ 11.) Plaintiff seeks to compel Osmanyan’s compliance with the deposition subpoena and monetary sanctions.

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition for production of business records. (Code of Civ. Proc., § 2020.010.) A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code of Civ. Proc., § 2020.020.)

A service of a deposition subpoena shall be effected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition. (Code of Civ. Proc., § 2020.220, subd. (a).) Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies. (Code of Civ. Proc., § 2020.220, subd. (c).) A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness. (Code of Civ. Proc., § 2020.240.)

The court may, on motion or on the court’s own motion after giving notice and an opportunity to be heard, make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court shall declare, including protective orders. (Code of Civ. Proc., § 1987.1, subd. (a).)

On February 13, 2018, Plaintiff’s investigator personally served Osmanyan with the deposition subpoena. (Aristov Decl., ¶ 7.) Shortly thereafter, Plaintiff’s counsel continued the deposition from April 6, 2018 to May 2, 2018 to give Osmanyan more time to prepare if necessary. (Aristov Decl., ¶ 8.) Osmanyan failed to appear on May 2, 2018 for her deposition. (Aristov Decl., ¶ 11.)

No opposition to this Motion to compel compliance was filed. Plaintiff’s motion to compel Osmanyan’s deposition is GRANTED. Karine Osmanyan is ordered to appear for her deposition within twenty (20) days of the date of this Order at a time and place to be set by Plaintiff.

Plaintiff seeks monetary sanctions of $2,035.00. A nonparty deponent may be subject to contempt or monetary sanctions for disobeying a court order (Code of Civ. Proc., § 2025.480, subd. (k)) or for “flouting” the discovery process by suppressing or destroying evidence (Temple Community Hospital v. Superior Court (20 Cal.4th 464, 476).

At this time, Osmanyan has not violated a court order and there is no evidence of suppression or destruction of evidence. However, Plaintiff asserts Osmanyan has been intentionally uncooperative in avoiding service and failing to appear for her deposition, despite counsel’s willingness to accommodate her schedule. Monetary sanctions are imposed in the amount of $455.00 for one hour at counsel’s rate of $395.00 per hour and the $60.00 filing fee. Osmanyan is ordered to pay this monetary sanction within twenty (20) days of the date of this Order.

Moving party to give notice.