Case Number: BC682052 Hearing Date: March 02, 2020 Dept: 28

Motion to Compel Deposition of Defendant/Cross-Defendant Jeremy Scott Bell

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

BACKGROUND

On November 11, 2017, Plaintiff Kayla Lyons filed a complaint against Defendants Tommer Benham, Asher Haim, and Jeremy Scott Bell. The complaint alleges negligence arising out of a vehicle-motorcycle accident that occurred on May 20, 2017.

On January 2, 2018, Defendants Tommer Benham and Asher Haim (“Cross-Complainants”) filed a cross-complaint against Defendant Jeremy Scott Bell (“Cross-Defendant”).

On January 31, 2020, Cross-Complainants filed a motion to compel Cross-Defendant to deposition.

On February 18, 2020, Cross-Defendant filed an opposition.

Trial is set for April 10, 2020.

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PARTY’S REQUESTS

Cross-Complainants ask the Court to compel Cross-Defendant to deposition for failure to appear at noticed depositions.

Cross-Complainants also ask the Court to impose $3,100 in monetary sanctions against Cross-Defendant for his abuse of the discovery process.

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 . . . , 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 is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010, subd. (d).)

DISCUSSION

On March 27, 2019, Cross-Complainants served a second amended notice of taking the deposition of Cross-Defendant. (Chang Decl., ¶ 10; Exh. G.) It was noticed for May 1, 2019. (Id.) Cross-Defendant did not serve an objection to the deposition notice. (Chang Decl., ¶ 11.) Cross-Defendant failed to appear on the scheduled deposition date and a Certificate of Non-Appearance was taken. (Chang Decl., ¶ 12; Exh. H.) Counsels for the parties corresponded regarding the non-appearance. It was disclosed that Cross-Defendant was incarcerated during said deposition date.

On August 22, 2019, counsel for Cross-Complainants was informed that Cross-Defendant was released from jail on July 23, 2019. (Chang Decl., ¶ 15.) On August 27, 2019, Cross-Complainants served a third amended notice of taking the deposition of Cross-Defendant. (Chang Decl., ¶ 16.) It was noticed for September 17, 2019. (Id.) The deposition was subsequently vacated. (Id.)

On December 10, 2019, Cross-Complainants served a fourth amended notice of taking the deposition of Cross-Defendant. (Chang Decl., ¶ 19; Exh. L.) At the agreement of all parties, the deposition was noticed for December 13, 2019. (Id.) Cross-Defendant again failed to appear, and a Certificate of Non-Appearance was taken. (Chang Decl., ¶ 20; Exh. M.) To date, Cross-Defendant’s deposition has not been taken. (Chang Decl., ¶ 23.)

In opposition, Cross-Defendant’s counsel argues: (1) until recently, they were unable to contact Cross-Defendant; (2) Cross-Defendant is vagrant and has difficulties with competency; (3) they have fully cooperated with discovery to the extent possible given the circumstances; (4) compelling deposition would constitute undue burden and expenses; and (5) the instant motion was made without substantial justification, and Cross-Defendant’s counsel is entitled to $1,500 in attorney’s fees.

The Court finds the motion is properly granted. Cross-Complainants properly served deposition notices to Cross-Defendant. Cross-Defendant twice failed to appear.

Both parties requests for sanctions are denied, however, as the Court is not convinced the Cross-Defendant’s failures have been willful.

CONCLUSION

The motion is GRANTED.

Cross-Defendant is ordered to appear at a deposition within 20 days of this ruling on a date mutually agreeable with Cross-Complainants.

Cross-Complainants are ordered to give notice of this ruling.