2016-00190636-CU-PA

Latia Smith vs. Richard Kiser

Nature of Proceeding: Motion for Monetary Sanctions

Filed By: Frumkin, Allan R.

Cross-defendant’s motion for monetary sanctions is DENIED, as follows.

Cross-defendant seeks monetary sanctions from defendant and his counsel for their failure to notify cross-defendant of the cancellation of plaintiff’s deposition.

According to defendant’s opposition, his deposition of plaintiff was cancelled not by defendant but rather by plaintiff’s own counsel, who was to start a trial on the date the deposition was to proceed. Plaintiff’s counsel apparently did not notify cross-defendant’s counsel of the cancellation.

This court finds that before beginning the drive from Loomis to Pleasant Hill, counsel for cross-defendant should himself have contacted counsel for either defendant or plaintiff to confirm whether plaintiff’s deposition was still proceeding as scheduled. Had he done so, the unnecessary trip to Pleasant Hill and this unnecessary motion would have been avoided. Failing to make the effort to first confirm whether the deposition was still on calendar, cross-defendant’s counsel assumed the risk that the drive may all be for nought and he cannot now recoup his lost time from defendant or his counsel, neither of whom played a role in cancelling the deposition.

While cross-defendant insists the party noticing the deposition is required to provide notice of its cancellation, cross-defendant provides no authority for this broad proposition and the court is unaware of any binding precedent which reaches such a holding. Moreover, cross-defendant has provided no authority for the suggestion that a failure to provide notice of a deposition’s cancellation constitutes an abuse of the discovery process so as to render it subject to monetary sanctions under Code of Civil Procedure §2023.010 et seq.

Consequently, the court declines to impose the requested monetary sanctions of over $1,500, which amount is in any event grossly disproportionate to the defendant’s

alleged failure to notify cross-defendant that the deposition had been cancelled due to plaintiff’s counsel’s trial date.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)