Case Name: Famarin v. Macy’s & Unknown Loss Prevention

Case No.: 17CV320275

Defendant Macy’s West Stores, Inc. (erroneously sued as Macy’s & Unknown Loss Prevention) (“Defendant”) moves to compel plaintiff Genaro Famarin (“Plaintiff”) to appear for his deposition.

I. Background
II.

This is an action for assault and battery and civil rights violations arising out of Plaintiff’s arrest at a Macy’s store for suspected shoplifting in December 2015. Plaintiff filed the amended form complaint on March 8, 2018, which was answered by Defendant on October 9, 2018.

Defendant noticed Plaintiff’s deposition for September 26, 2019, at its office in San Francisco. (Declaration of Evgenia Jansen in Support of Motion to Compel Deposition (“Jansen Decl.”), ¶ 2, Exhibit 1.) The notice was served on September 4, 2019 and included requests for production of documents. (Id.) Plaintiff, who served no objections to the foregoing notice, failed to appear for his deposition on September 26th. (Id.)

On January 3, 2020, Defendant filed the instant motion to compel Plaintiff’s attendance at his deposition and for monetary sanctions. The motion is unopposed by Plaintiff, who was formerly self-represented but now appears to have counsel despite no notice of formal representation having been served. Defendant’s counsel met and conferred with attorney Stanley Goff, who purportedly now represents Plaintiff but did not represent him when the notice was served, on January 3, 2020. (Jansen Decl., ¶ 3.) According to Mr. Goff, Plaintiff is currently incarcerated. (Id.)

III. Defendant’s Motion to Compel
IV.

Defendant moves to compel Plaintiff’s deposition pursuant to Code of Civil Procedure section 2025.450, which provides that if, after service of a deposition notice, a party to the action, without having served a valid objection, fails to appear for examination, or to proceed with it, the party giving notice of the deposition may move for an order compelling the deponent’s attendance and testimony. (Code Civ. Proc., § 2025.450, subd. (a).) Such a motion must be accompanied by a meet and confer declaration, or, when the deponent fails to attend the deposition, by a declaration stating that the moving party has inquired about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).)

Defendant has established, via the supporting declaration of its counsel, that Plaintiff was served with notice of his deposition but failed to appear at it, and never served any objections. Defendant subsequently inquired as to the Plaintiff’s nonappearance prior to filing the instant motion as mandated by statute. As a result of the foregoing, Defendant’s motion to compel is GRANTED, and Plaintiff must appear for deposition within 30 days of this order (unless he is currently incarcerated—if so, he must appear for deposition within 30 days of being released from custody). When Plaintiff appears for deposition, he must provide the requested documents.

V. Defendant’s Request for Sanctions
VI.

In connection with its motion, Defendant requests that the Court award it sanctions in the amount of $1,260 pursuant to Code of Civil Procedure section 2025.450, subdivision (g), which provides that if a motion to compel a deponent’s attendance is granted, the court “shall impose a monetary sanction … 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.” As the motion is granted, and no explanation has been offered for Plaintiff’s nonappearance because no opposition to the motion has been filed, the Court finds that Defendant is entitled to sanctions.

Defendant’s request for sanctions is supported by its counsel’s declaration stating that it incurred the following legal expenses and fees: 2 hours attorney fees (at a rate of $195 per hour) for preparing for the deposition, ½ hours attorney fees for appearing at the deposition, ½ hours attorney fees for meet and confer correspondence, 3 hours attorney fees preparing the motion to compel and anticipated appearance, $60 filing fee and a $30 processing fee. (Jansen Decl., ¶ 4.) The Discovery Act authorizes an order for payment of the reasonable expenses, including attorney’s fees, incurred as a result of the conduct for which the sanctions are imposed. (Code Civ. Proc., §§ 2025.450, subd. (g) and 2023.030, subd. (a).) Here, the fees requested by Defendant for time spent preparing for and appearing at the deposition are not compensable because they were not incurred as a result of Plaintiff’s nonappearance. Also not compensable is time spent on meet and confer and time anticipated to be spent at the hearing. Thus, the Court finds that Defendant is entitled to monetary sanctions in the amount of $480 (2 hours to prepare the motion plus fees). Accordingly, Defendant’s request for monetary sanctions is GRANTED IN PART.

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