Case Number: BC700316 Hearing Date: November 27, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND MONETARY SANCTIONS; MOTION GRANTED

On April 2, 2018, Plaintiff Juan Contreras (“Plaintiff”) filed this action against Defendants Wal-Mart Stores, Inc., McDonalds Restaurants of California, Inc., M. Pernecky Management Corp. (“Defendant”) for premises liability and general negligence relating to a May 19, 2016 slip and fall incident. Defendant moves to compel Plaintiff’s appearance at deposition and monetary sanctions.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code of 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 of Civ. Proc., § 2025.280, subd. (a).)

“If, after service of a deposition notice, a party . . . 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 of Civ. Proc., § 2025.450, subd. (a).) The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration. (Code of Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)

On May 24, 2018, Defendant noticed Plaintiff’s deposition for July 6, 2018. (Declaration of Shawheen Shafizadeh, ¶ 3; Exh. A.) The parties mutually agreed to continue Plaintiff’s deposition to September 20, 2018. (Shafizadeh Decl., ¶ 4.) On September 19, 2018, defense counsel confirmed Plaintiff’s deposition with his counsel and requested a certified Spanish interpreter. (Shafizadeh Decl., ¶ 6.) On September 20, 2018, Plaintiff failed to appear and a certificate of non-appearance was taken. (Shafizadeh Decl., ¶ 7.) From September 21 to 25, 2018, Defendant attempted to meet and confer with Plaintiff to reschedule his deposition and requested that Plaintiff reimburse Defendant for the costs of his nonappearance. (Shafizadeh Decl., ¶¶ 9, 10.) To date, Plaintiff has not reimbursed Defendant and has not provided an alternative date for deposition. (Shafizadeh Decl., ¶ 11.)

Plaintiff states that his failure to appear on September 20 was due to his extreme hardship in finding transportation and inability to reach a telephone to contact Plaintiff’s counsel. The deposition was set in Irvine, California and Plaintiff lives in Pacoima. Plaintiff’s counsel states Plaintiff is willing to reschedule his deposition with shortened notice and proposed that his deposition be taken at his counsel’s office in Los Angeles, California due to the proximity to his home. Despite Plaintiff’s counsel’s assertion that he has repeatedly tried to reschedule Plaintiff’s deposition, only one email was attached.

It is undisputed that Plaintiff failed to appear for his properly noticed deposition and it appears the parties have been unable to agree to a date and location for Plaintiff’s rescheduled deposition. Having considered the moving, opposition, and reply papers, the Motion to compel Plaintiff’s deposition is GRANTED and Plaintiff is ordered to appear for his deposition within twenty (20) days of the date of this Order, or other date to which the parties agree.

The deposition of a natural person, whether or not a party, shall be take at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence. (Code of Civ. Proc., § 2025.250.) The Court cannot order that Plaintiff’s deposition be taken in Los Angeles, but encourages the parties to meet and confer on this issue.

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 of Civ. Proc., § 2025.450, subd. (g)(1).) Monetary sanctions are GRANTED and imposed against Plaintiff, and Plaintiff’s counsel, jointly and severally, in the amount of $1,240.50 for one hour at defense counsel’s hourly rate of $180.00, the $60.00 filing fee for this Motion, $320.00 in court reporter fees, and $680.50 in certified interpreter fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.