Case Number: BC691153 Hearing Date: November 27, 2019 Dept: 4A

Motion to Compel Deposition

Having considered the moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On January 19, 2018, Plaintiff Louis Merlin (“Plaintiff”) filed a complaint against Defendant Chelsea Nicole Boyer (“Defendant”) alleging motor vehicle negligence for an automobile collision that occurred on January 19, 2016.

On October 17, 2019, Defendant filed a motion to compel Plaintiff’s compliance with a deposition notice pursuant to California Code of Civil Procedure section 2025.450, subdivision (a).

Trial is set for January 23, 2020.

PARTY’S REQUESTS

Defendant asks the Court to compel Plaintiff to appear and testify at a deposition within 20 days of the hearing on this motion due to Plaintiff’s failure to appear at a noticed deposition.

Defendant also asks the Court to impose $1,110 in monetary sanctions against Plaintiff for its 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 September 5, 2019, Defendant served Plaintiff with a notice of taking Plaintiff’s deposition on October 3, 2019. (Mahlstedt Decl., ¶ 5, Exh. C.) Plaintiff failed to appear at the October 3, 2019 deposition. (Mahlstedt Decl., ¶ 6, Exh. E.)

The Court finds the motion is properly granted because the notice of taking deposition was served on Plaintiff and Plaintiff failed to appear at the noticed deposition date. There are no facts that suggest Plaintiff acted with a substantial justification in failing to appear at the deposition date. There are also no facts presented to the Court showing an imposition of sanctions would be unjust.

Defendant’s request for $1,110 in monetary sanctions consists of 3 hours for bringing this motion at a rate of $350 an hour plus one $60 filing fee. (Mahlstedt Decl., ¶ 8.) The Court finds this to be an unreasonable amount of sanctions. The motion is straight-forward and could have been drafted by a less senior attorney in the same amount of time this motion was drafted. Rather, the Court finds $660 ($300/hr. x 2 hrs. plus one $60 filing fee) to be a reasonable amount of sanctions to be imposed against Plaintiff and Plaintiff’s counsel of record.

The motion is GRANTED.

Plaintiff is ordered to appear at a deposition on a date mutually agreeable between the parties within 30 days of this ruling.

Plaintiff and Plaintiff’s counsel of record are ordered to pay Defendant $660, jointly and severally, within 30 days of this ruling.

Defendant is ordered to give notice of this ruling.