Case Number: BC703856 Hearing Date: March 15, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

joe tellez,

Plaintiff,

v.

jason kim, et al.,

Defendants.

Case No.: BC703856

Hearing Date: March 15, 2019

[TENTATIVE] order RE:

PLAINTIFF’s motion for order compelling Defendant’s DEPOSITION

BACKGROUND

Plaintiff Joe Tellez (“Plaintiff”) alleges he sustained injuries in a motor vehicle collision with Defendant Jason Kim (“Defendant”). Plaintiff moves to compel Defendant to appear for deposition. Defendant opposes the motion. The motion is granted.

LEGAL STANDARD

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent to attend and testify at deposition. (Code Civ. Proc., §2025.450, subd. (a).)

DISCUSSION

Plaintiff has the right to take Defendant’s deposition and is entitled to take Defendant’s depositions without leave of court at any time after Plaintiff served Defendant, or after Defendant appeared in the action. (See Code Civ. Proc., § 2025.210, subd. (a).)

Here, after the parties conferred about suitable dates for Defendant’s deposition, Plaintiff noticed Defendant’s deposition for August 3, 2018. Shortly before that date, Defendant’s counsel asked to reschedule. The parties then conferred about additional dates, and, after Defendant did not provide alternative dates, Plaintiff unilaterally selected November 6, 2018, and noticed Defendant’s deposition for that date. On November 5, 2018, Defendant’s counsel stated that Defendant would not appear on November 6, 2018, and requested to reschedule. After Defendant again did not provide alternative dates, Plaintiff unilaterally selected November 30, 2018, and noticed Defendant’s deposition for that date. On November 28, 2018, Defendant’s counsel stated that Defendant could not appear on that date, and provided alternative dates in January 2019. Plaintiff did not agree reschedule the deposition, and insisted that the deposition go forward on November 30, 2018. Defendant did not appear. Plaintiff followed up with Defendant about his failure to appear at deposition, but Defendant did not respond. (See Declaration of Benjamin Barkley.)

In opposition, Defendant argues that he provided Plaintiff with alternative dates for his deposition on February 21, 2019. That is after Plaintiff filed this motion. Defendant failed to meaningfully cooperate with Plaintiff in scheduling his deposition, and Plaintiff therefore had to file this motion to facilitate Defendant’s deposition.

In sum, Defendant has failed to appear for his deposition as required, despite multiple continuances at his request. Defendant also has acted inappropriately by refusing to provide alternative dates, and cooperated only after Plaintiff filed this motion. Accordingly, the motion to compel Defendant’s deposition is granted. Defendant is ordered to appear for a deposition within thirty (30) days of notice of this order unless Plaintiff agrees to a different date.

Plaintiff requests sanctions and requests $6,114.95 for 16.5 hours of attorney time at a billing rate of $350 per hour plus a filing fee of $61.65 and $278.30 for the cost of a failed deposition. As an initial matter, each entry listed in Plaintiff’s counsel’s declaration is in full or half hour increments, suggesting that these entries are not, in fact, accurate, i.e., that rounding has occurred. Moreover, Plaintiff’s request is not supported by the record. For example, the Court does not understand why it took one hour to prepare a notice of first continuance of deposition, or even 30 minutes to prepare the second and third notices. The record contains no information why it took one full hour to review correspondence from November 6, 2018, or another full hour to review correspondence from December 27, 2018. The record also contains no information concerning why it took one hour each for two entries titled “production of documents at deposition,” especially when no deposition of Defendant occurred.

Therefore, the Court orders sanctions only in the amount the Court believes is appropriate for a motion of this nature. The Court orders sanctions in the amount of $600 based on three hours of attorney time at a reasonable rate of $200, plus a filing fee of $61.65 and the deposition cost of $278.30, for a total of $939.95, payable jointly and severally by Defendant and counsel-of-record.

CONCLUSION AND ORDER

Plaintiff’s motion to compel Defendant’s deposition is granted. Defendant is to appear for deposition within thirty (30) days of service of notice of this order unless Plaintiff agrees to a different date.

Defendant and his counsel of record, the Law Office of Steven D. Levine, jointly and severally, are ordered to pay sanctions in the amount of $939.95 to Plaintiff, by and through counsel, within thirty (30) days of service of notice of this order.

Plaintiff is to give notice of this order, and file proof of service of such.

DATED: March 15, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court