Case Number: 18STCV00344 Hearing Date: February 21, 2020 Dept: 47

Louis Metoyer v. Marjorie Anne Guzman, et al.

MOTION TO COMPEL DEPOSITION OF LOUIS METOYER

MOVING PARTY: Defendant Marjorie Anne Guzman

RESPONDING PARTY(S): Plaintiff Louis Metoyer

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a personal injury case arising from an auto accident.

Defendant Marjorie Anne Guzman moves to compel Plaintiff’s deposition.

TENTATIVE RULING:

Defendant Marjorie Anne Guzman’s motion to compel the deposition of Louis Metoyer is GRANTED. The deposition is to take place within 14 days of the date of this order.

Plaintiffs’ request for sanctions is GRANTED in the amount of $1,055.00 against both Plaintiff Louis Metoyer and his counsel, the Law Offices of Jacob Emrani, jointly and severally. Sanctions to be paid to Defendant’s counsel within 30 days.

DISCUSSION:

Motion To Compel Deposition

Defendant moves to compel the deposition of Plaintiff Louis Metoyer.

Where, as here, a party deponent has not appeared for his deposition at all, CCP § 2025.450 applies:

(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) 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.

(2) 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.

(CCP § 2025.450(a), (b) (bold emphasis added).)

Here, Plaintiff made no objections under CCP § 2025.410; his “objection” to the deposition stated only that he and his counsel were not available. (Declaration of Kurt Boyd, Exh. C.)

The Declaration of Attorney Kurt Boyd also indicates that Defendant’s counsel “contacted the deponent to inquire about the nonappearance” as required by CCP § 2025.450(b)(2). (Boyd Decl. ¶ 7.)

Had Plaintiff made himself available to his counsel promptly each time his deposition was previously scheduled, giving the Court confidence that his deposition would, indeed, be scheduled promptly, the motion likely would have been denied as moot. Here, however, multiple times Plaintiff’s counsel states that he was unable to reach his own client, sometimes for over a month. (Declaration of Ian Shakramy ¶¶ 7-8.) Plaintiff’s counsel has also provided no explanation for why Plaintiff was unavailable from February 12 to 19, 2020. (Id. ¶ 9.) With trial scheduled for April 9, 2020 – a little over a month from now – Plaintiff’s opposition provides little assurance that this deposition will occur promptly without a Court order. This is especially problematic when the deposition at issue is a party deposition.

Accordingly, Defendant’s motion is GRANTED. The deposition is to take place within 14 days of the date of this order.

Defendant’s request for sanctions is also GRANTED in the amount of $1.055.00 representing Defendant’s reasonable attorney’s fees and costs incurred in bringing this motion. (CCP § 2025.450(g)(1).) Sanctions are mandatory when a motion to compel under CCP § 2025.450(a) is granted, “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.” (Ibid.) Here, the Court does not find that Plaintiff acted with substantial justification or that sanctions are otherwise unjust. Sanctions are awarded against both Plaintiff Louis Metoyer and his counsel, Law Offices of Jacob Emrani, as both appear to be responsible for his failure to appear for his deposition. Counsel’s inability to reach Plaintiff, and Plaintiff’s failure to respond to his counsel’s communications, are not a valid excuse for failing to comply with discovery. If counsel cannot maintain communication with his client, he should consider requesting to be relieved as counsel.

Concluding Observations

This is a sad, but typical demonstration, on how our litigation has de-evolved in the past several decades. How dare a party demand and actually expect that the opposing party submit himself or herself to a deposition! Such audacity!

Plaintiff complains that the deposition notices were without first clearing the dates with counsel. While that may show a lack of “civility” or professional courtesy, the simple fact is that there is no actual rule which requires a party noticing a deposition to clear dates with the opposing counsel. The only statutory requirement is that proper notice is given under the parameters of CCP § 2025.210 through and including CCP § 2025.280. It is undisputed that these provisions were complied with in the respective notices.

Of course, it may be too bold for this Court to suggest that if Plaintiff’s lawyers (the Law Offices of Jacob Emrani) would timely return or respond to the various phone calls and/or letters by the defendant’s lawyers in this regard, that perhaps this motion could have been avoided.

Be that as it may, it is painfully and readily apparent in this particular case, that it hasn’t been beneficial to anyone so far to simply “Call Jacob.”©

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 21, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court