Case Number: BC676297 Hearing Date: March 12, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Martha Lopez,

Plaintiff,

v.

Ray Flores, et al.,

Defendant.

Case No.: BC676297

Hearing Date: March 12, 2018

[TENTATIVE] order RE:

Plaintiff’S motion for order compelling Defendant Flores’s attendance and testimony at deposition

BACKGROUND

In this action, Plaintiff Martha Lopez (“Plaintiff”) alleges that she was injured in a motor vehicle collision with Defendant Ray Flores (“Defendant” or “Flores”) while he was working within the scope of employment of Defendant Best Tec. The incident occurred on November 27, 2015. The complaint, filed September 19, 2017, alleges causes of action for motor vehicle and negligence.

Plaintiff moves for an order compelling Defendant Flores to submit to his deposition and for sanctions against Defendant and his attorneys of record. Defendant has filed an opposition, and Plaintiff replied.

LEGAL STANDARD

Pursuant to CCP §2025.450, if after service of a deposition notice, a party to the action, without having served a valid objection, fails to appear for examination, or proceed with it, or to produce for inspection any document, the party giving notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document. (CCP §2025.450(a).) A motion to compel the deposition of a party to the action must be accompanied by a meet and confer declaration, or, when the deponent failed to attend the deposition, a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (CCP §2025.450(b)(2).)

DISCUSSION

On October 25, 2017, Plaintiff served on Defendant a Notice of Taking Deposition, setting the deposition for November 27, 2017. On November 21, 2017, Defendant’s counsel served objections to the notice of deposition stating that counsel was unavailable at the date and time of the scheduled deposition. Defendant’s counsel did not suggest alternate dates for the deposition.

On November 22, 2017, Plaintiff sent Defendant’s counsel correspondence requesting by November 30, 2017 a list of new dates for the deposition. Plaintiff’s calendar clerk also called Defense Counsel on November 27, 2017 requesting available dates for the deposition. As of December 1, 2017, Plaintiff had not received any dates from Defendant, and thus, Plaintiff served a new Notice of Deposition set for December 20, 2017.

On December 15, 2017, Defendant served objections to the notice and stated counsel was unavailable for the December 20, 2017 date. Defendant’s counsel did not suggest alternate dates for the deposition. Plaintiff again requested available dates for the deposition but received none.

Plaintiff served another notice for the deposition of Defendant Flores to be set for January 23, 2018. On January 17, 2018, Defendant mail served objections stating Counsel was unavailable for the January 23, 2018 deposition. Defendant’s counsel did not suggest alternate dates for the deposition. Despite these objections, Plaintiff proceeded with the January 23, 2018 deposition, and when Defendant Flores did not appear, requested an affidavit of non-appearance for Defendant Flores on January 23, 2018. On January 26, 2018, Plaintiff again requested new dates for Defendant Flores’ deposition. On January 29, 2018, Defense Counsel communicated to Plaintiff Counsel’s office that Defendant Flores could not be located.

In opposition, Defendant’s Counsel asserts that Defendant’s Counsel lost touch with Defendant and was not able to schedule the deposition. Counsel states that Defendant Flores no longer works for Defendant Best Tec, and despite Counsel’s efforts, Defendant Flores has not been found. Defense Counsel states that she informed Plaintiff of the inability to locate Defendant Flores on December 19, 2017. However, Plaintiff continued to notice deposition dates for Mr. Flores. Defendant’s Counsel asks that sanctions not be imposed because Plaintiff’s counsel failed to engage in reasonable and good faith attempts to resolve this matter informally. Defense Counsel also asserts that she has tried multiple times and through multiple avenues to find Defendant Flores with no success, particularly due to the commonality of Defendant Flores’s name.

The Court finds Defendant’s failure to attend his deposition to constitute a misuse of the discovery process on the part of Defendant. As a litigant, Defendant bears the responsibility to update his counsel of his whereabouts so that he may respond to discovery. By failing to do so, Defendant has caused unnecessary delays and has forced Plaintiff to incur unnecessary expenses to pursue discovery to which Plaintiff is entitled. Defendant’s failure to advise his attorney of his whereabouts for such an extended period does not justify his non-appearance.

However, the Court finds that Defense Counsel’s actions are not a misuse of the discovery process. Defendant objected to each notice of deposition and told Plaintiff of her difficulties in locating her client as early as December 9, 2018. Further, Defense Counsel provided notice to Plaintiff close to a week before the non-appearance was entered on January 23, 2018 that Counsel would not be available on that day. Defense Counsel’s actions in this case do not merit sanctions, but Plaintiff is entitled to a deposition of Defendant Flores.

Accordingly, Plaintiff’s motion to compel deposition of Defendant Flores is granted. Defendant is ordered to appear for deposition within twenty (20) days of notice of this order at a date, time, and location to be noticed by Plaintiff.

As noted above, the Court finds Defendant’s failure to appear for deposition a misuse of the discovery process. (CCP § 2023.010(d).) Sanctions have been sufficiently noticed against Defendant Flores and Defense Counsel. However, the Court awards sanctions only against Defendant Ray Flores. Sanctions are awarded in the amount of $1,012.00, representing 2 hours for drafting the motion and for appearance at the hearing, at $350.00 per hour, plus the $60 filing fee, plus the $252 court reporter costs for non-appearance at the deposition. Defendant Ray Flores is ordered to pay sanctions to Plaintiff, by and through her attorney, in the amount of $1,012.00 within 30 days. (CCP § 2023.030.)

CONCLUSION AND ORDER

The Court grants Plaintiff’s motion to compel Defendant’s deposition. Defendant is ordered to appear for deposition within twenty (20) days of notice of this order at a date, time, and location to be noticed by Plaintiff.

Defendant is also ordered to pay sanctions to Plaintiff in the amount of $1,012.00 within 30 days.

Plaintiff is ordered to provide notice of this order.

DATED: March 12, 2018 ___________________________

Elaine Lu

Judge of the Superior Court