Case Number: BC705251 Hearing Date: November 06, 2019 Dept: 4A

Motion to Compel Deposition

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On May 7, 2018, Plaintiff Karen Yeates (“Plaintiff”) filed a complaint against Defendants South Lake Avenue Investors LLC and South Lake Avenue, LLC alleging negligence and premises liability for a trip-and-fall that occurred on¿March 17, 2018.

On August 8, 2018, Defendant/Cross-Complainant South Lake Avenue Investors, LLC filed a cross-complaint against Roes 1 to 20 seeking indemnification, apportionment of fault, and declaratory relief.

On October 9, 2019, Defendant/Cross-Complainant South Lake Avenue Investors, LLC filed a motion to compel a deposition pursuant to California Code of Civil Procedure section 2025.450.

Trial is set for May 7, 2020.

PARTY’S REQUESTS

Defendant/Cross-Complainant South Lake Avenue Investors, LLC (“Moving Party”) ask the Court to compel Plaintiff to appear and testify at a deposition on November 15, 2019.

Moving Party also asks the Court to order Plaintiff to pay: (1) $1,826.73 for her abuse of the discovery process and (2) $180 for sanctions not paid pursuant to the April 11, 2019 and April 26, 2019 Court orders.

LEGAL STANDARD

California Code of Civil Procedure section 2025.450, subdivision (a) provides: “If, after service of a deposition notice, a party to the action or . . . managing agent . . . , without having served a valid objection under Section 2025.410, 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 the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”

California Code of Civil Procedure section 2025.450, subdivision (b) provides: “A motion under subdivision (a) shall comply with both of the following:

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

California Code of Civil Procedure section 2025.450, subdivision (c) provides, “(1) If a motion under subdivision (a) 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.”

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery are misuses of the discovery process. (Code of Civ. Proc. § 2023.010, subd. (d), (g).)

DISCUSSION

On August 8, 2018, Moving Party noticed Plaintiff’s deposition to take place on November 29, 2018. (Nachiappan Decl., ¶ 5, Exh. C.) Moving Party continued the deposition three times due to Plaintiff’s failure to provide outstanding discovery responses prior to the scheduled deposition dates. (Nachiappan Decl., ¶¶ 6-8, Exh. D-F.) Moving Party continued the deposition another five times due to either Plaintiff’s or Plaintiff’s counsel’s unavailability. (Nachiappan Decl., ¶¶ 10-15, Exh. H-I.) Moving Party continued the deposition one last time to September 27, 2019 upon agreement with Plaintiff’s counsel. (Nachiappan Decl., ¶¶ 16-18, Exh. K-L.) On September 26, 2019, Plaintiff’s counsel stated the deposition could not proceed because one associate had been involved in an accident and could not travel and another associate was celebrating a Jewish holiday on September 27, 2019. (Nachiappan Decl., ¶ 20, Exh. M.) September 27, 2019 is not a Jewish holiday. (Nachiappan Decl., ¶ 23, Exh. N.) On September 27, 2019, Plaintiff did not appear for her deposition and a Certificate of No Appearance was taken. (Nachiappan Decl., ¶ 24, Exh. O.)

The Court finds the motion to compel Plaintiff’s attendance at a deposition is necessary. Plaintiff and her counsel have delayed her deposition in a variety of ways. First, Plaintiff and her counsel delayed her deposition because they failed to provide timely responses to written discovery. Second, Plaintiff’s counsel delayed her deposition because Raymond Ghermezian insisted on being present for the deposition despite his mother being sick. Third, once an associate was given the reigns to be present at the deposition, an accident occurred rendering this associate unable to attend the deposition. Importantly, Mr. Ghermenzian does not explain why he could not have attended the deposition after his associate was in an accident on September 26, 2019. There being no substantial justification for Plaintiff’s repeated failure to appear for deposition, sanctions are appropriate here.

Moving Party’s request for $1,826.73 consists of 3 hours in drafting the moving papers and 4 hours in reviewing the opposition, preparing a reply, and arguing the motion at a rate of $225 an hour, plus one $60 filing fee and one $191.73 court reporter fee. (Nachiappan Decl., ¶ 26.) The Court finds this amount of sanction to be unreasonable. This is a straight-forward motion and no reply was filed. Rather, the Court finds $926.73 ($225/hr. x 3 hrs. plus one $60 filing fee plus one $191.73 court reporter fee) to be a reasonable amount of sanctions to be imposed against Plaintiff and her counsel of record for their abuse of the discovery process.

Moving Party also requested the Court order Plaintiff to pay $180 for sanctions that were not paid pursuant to the April 11, 2019 and April 26, 2019 Court orders. But Plaintiff has paid this outstanding balance as shown in Exhibit 1 to the opposition.

The motion is GRANTED.

Plaintiff is ordered to appear for and testify at a deposition pursuant to the terms in the August 8, 2019 deposition notice at 10:00 a.m. on November 15, 2019 at 555 S. Flower Street, Suite 600, Los Angeles, CA 90071, or on a date mutually agreeable between the parties within 30 days of this ruling.

Plaintiff and her counsel of record are ordered, jointly and severally, to pay Moving Party $926.73 within 30 days of this ruling.

Moving Party is ordered to give notice of this ruling.