Case Number: BC616083 Hearing Date: February 05, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO COMPEL DEPOSITION OF PLAINTIFFS JOHN MARTELLO AND ALICE MARTELLO; GRANTED

On February 13, 2015, Plaintiffs John Martello and Alice Martello (collectively, “Plaintiffs”) filed this action against Defendants ISC Contractors, Inc.; 820 Mission LLC; 820 Mission Development LLC; Intracorp Socal-1 LLC; Intracorp Southern California LLC; Intracorp Los Angeles LLC; ISC Properties LLC; ISC Residential Inc.; Intracorp Capital LLC; Intracorp Socal-2 LLC; De Real Estate Ownership and Operation; WA Real Estate Ownership and Operation; Intracorp Real Estate LLC III; Intracorp Properties Investments LLC; Intracorp Company Investments LLC; Intracorp San Diego LLC; Intracorp San Francisco LLC; Intracorp Properties LLC; Intracorp Funding LLC; Intracorp Management Services LLC; Intracorp East LLC, Intracorp Marketing and Sales LLC; Intracorp Companies; Intracorp Real Estate LLC and Does 1 to 20. The case arises out of Defendants’ alleged removal of a tennis court fence. Defendant 820 Mission Development, LLC (“Defendant”) moves to compel Plaintiffs’ appearances at deposition and monetary sanctions.

Compel Deposition

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. (Code Civ. Proc., § 2025.410, subd. (c).) “If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

On June 14, 2018, Defendant served a Notice of Taking Deposition on Plaintiffs setting Alice Martello’s deposition for July 10, 2018 and John Martello’s deposition for July 11, 2018. (Bates Decl., ¶ 3.) Defendant’s counsel did not receive objections to the notices. (Ibid.) A notice of non appearance was taken for Alice Martello. (Ibid.) Plaintiffs’ counsel emailed Defendant on the evening of July 10, 2018, stating health issues prevented Alice Martello’s attendance at deposition, and John Martello would not be appearing for deposition either. (Bates Decl. ¶4.) Defense counsel incurred a cancelation fee for the deposition of John Martello in the amount of $295.00 and court reporter costs in the amount of $362.90 for the deposition of Alice Martello. (Bates Decl. ¶¶3, 6.)

Plaintiffs filed no opposition to this Motion, did not serve valid objections to the deposition notices, and did not appear at the noticed depositions. Accordingly, the motion to compel Alice Martello’s and John Martello’s appearances at depositions is GRANTED, and Plaintiffs are ordered to appear at depositions within twenty (20) days of the date of this Order.

Monetary Sanctions

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).) On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent. (Code Civ. Proc., § 2025.450, subd. (g)(2).)

Monetary sanctions are GRANTED and imposed against Plaintiffs and their counsel, jointly and severally, in the reduced amount of $1,067.90 for two hours at defense counsel’s hourly rate of $175.00, $60.00 in filing fees, $295.00 for a deposition cancellation fee, and $362.90 for a non-appearance fee, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.