McFarland v. Church et al.		CASE NO. 114CV261581
DATE: 14 November 2014	TIME: 9:00	LINE NUMBER: 15

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 13 November 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 14 November 2014, the motion of Defendant to Compel Plaintiff Appearance at Deposition and sanctions for Failure to Appear was argued and submitted.

Plaintiff did not file formal opposition to the motion.[1]

1. Statement of Facts.

This is a breach of contract action in which Plaintiff seeks to recover $3,750,000.00 plus interest based upon an alleged oral settlement made by members and pastors of the Seventh-day Adventist Church on behalf of their Church. The settlement in question was an oral promise to play Plaintiff $3,750,000.00 in return for Plaintiff’s promise to not litigate a claim for false imprisonment.

1. Discovery Dispute.

On 30 May 2014, Defendants served on Plaintiff Defendants’ Form Interrogatories, Set One, Special Interrogatories, Set One and Set Two, Requests for Admissions, Set One, and Request for Production of Documents, Set One.

On 8 July 2014, Defendants sent a letter to Plaintiff requesting discovery responses. Plaintiff responded on 12 July 2014, stating Plaintiff had requested an extension of time on 11 June 2014. Defendant’s never received that request for an extension, but agreed to an extension until 30 July 2014 regardless.

On 31 July 2014, Plaintiff provided incomplete responses to Defendants’ Form Interrogatories, Set One. Plaintiff also provided a response to Defendants’ Special Interrogatories, Set One. The single page appears to be the first page of a longer response, but the rest of the response is missing.

On 2 September 2014, Defendants informed Plaintiff that Plaintiff had failed to provide adequate responses to discovery, and Defendants would file a motion to compel if adequate responses were not received in 7 days.

On 25 September 2014, Defendants filed these motions to compel responses for Interrogatories.

On 24 October 2014, this Court ordered Plaintiff to further response to Defendants’ Form Interrogatories, Set One, Nos. 2.8, 6.1-6.7, 8.5-8.8, 12.1-12.7, 17.1, 50.1-50.6 and Defendants’ Special Interrogatories, Set One and Set Two within 20 days of the date of the filing of the Order.

In addition to Interrogatories, Defendants’ also sent a Notice of Taking Continued Deposition via videotape with Production of Documents to the Plaintiff on 20 August 2014. The notice was mailed to Plaintiff’s two addresses and was also emailed to Plaintiff.[2]

On 12 September 2014, Defendants emailed Plaintiff to confirm his appearance for his deposition on 19 September 2014. Plaintiff replied and informed Defendants that he was unable to attend due to his illness.

On 15 September 2014, Defendants re-noticed the deposition of Plaintiff to 3 October 2014.

From the 30^th of September to the 3^rd of October, Defendants’ made numerous requests from Plaintiff to update his current address and documents (See Hiroshima Dec., Ex I). Furthermore, Plaintiff did not contact defendant regarding his inability to appear at the deposition.

On 3 October 2014, Defendants attended the deposition of the Plaintiff in San Diego. Yet, Plaintiff did not appear at the deposition.  Defendants emailed Plaintiff regarding his non-appearance. Plaintiff’s reply was “noted and appropriately forwarded.”  The court reporter and videographer noted plaintiff’s non-appearance.

On 14 October 2014, Defendants filed motion to compel Plaintiff appearance at deposition and sanctions for failure to appear at deposition.

III.     Analysis.

1. Meet and Confer

A code-compliant attempt to meet and confer is an explicit prerequisite to compelling attendance at/compliance with a deposition. (Code Civ. Proc. § 2025.450(b).) Under California Code of Civil Procedure (CCP) § 2016.040, “a meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt informal resolution of each issue presented by the motion.” However, where a deponent fails to attend a deposition, a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance is also sufficient. (Code Civ Proc. § 2025.450(b)(2)).  “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue.” (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124).

There is no evidence in the provided declaration or any of the available exhibits that Plaintiff has attempted to meet and confer regarding the present motion to compel. However, there are emails from Defendant to Plaintiff regarding the date of Plaintiff’s deposition. Defendant had already rescheduled the deposition once to accommodate Plaintiff’s inability to attend the deposition. Plaintiff did not make clear his reasons behind the current non-appearance since all he stated was “ Noted and appropriately forwarded.”  Therefore, the evidence, including Defendants’ declaration and exhibits, is sufficient to satisfy the inquiry requirement of §2025.450(b)(2).

1. Motion to Compel Plaintiff’s Appearance at his Deposition

Defendants are entitled to depose any natural person, organization such as a public or private corporation, partnership, association, or governmental agency under CCP § 2025.010. Upon receipt of service, Plaintiff was required to appear and testify under § 2025.280(a). Plaintiff’s failure to appear without any justification makes Defendant’s motion to compel Plaintiff’s appearance appropriate under § 2025.450(a).

The motion of Defendants to compel Plaintiff to appear for a deposition is GRANTED.  Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

1. Sanctions

Defendants make a request for monetary sanctions.  The request is code-compliant.  Code of Civil Procedure, § 2023.040.

Defendants correctly noted that if a deponent on whom a position subpoena has been served fails to attend a deposition or refuses to be sworn as witness, the court may impose on the deponent sanctions under CCP§ 2020.240.

CCP §2020.240 states that

A deponent who disobeys a deposition subpoena in any manner described in [CCP §2020.220(c)] may be punished for contempt under Chapter 7 (commencing with Section 2023.010) without the necessity of a prior order of court directing compliance by the witness. The deponent is also subject to the forfeiture and the payment of damages set forth in Section 1992.

CCP § 2023.030 authorizes the Court to impose monetary, evidentiary, issue, or terminating sanctions where a party is engaged in conduct that is a misuse of the discovery process.

Moreover, Defendants correctly cited in its supplemental briefs that where there are no opposition papers filed, the proper source of authority for monetary sanction is Rule of Court 3.1348(a). The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery provide the moving party after the motion was filed.

In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49). Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services, Inc. (2010) 186 Cal.App.4th 1548, 1551).

Defendants’ listed the costs associated with the taking of the deposition for Plaintiff’s Nonappearance was $1,278.50, which includes the cost of Court’s reporter and videographer. In addition to the deposition fee, Defendant listed his travel time and hourly rate to and from the deposition was $1,610.00. Defendant’s counsel further declares that he spent a total of 6.6 hours to prepare this Motion to compel. However, the court noted that a reasonable time to prepare this motion should have been 3 hours. Therefore, the total amount is §690.

This court will only grant the amount incurred. Therefore, the total amount for monetary sanction is $3,578.50.

Accordingly, Defendants’ request for monetary sanctions against Plaintiff is GRANTED. Plaintiff shall pay $3,578.50 to Defendant within 20 days of the date of this order.

1. Order.

The motion of Defendants’ to compel Plaintiff to appear for a deposition is GRANTED.  Plaintiff shall appear at a deposition that a code compliant location and produce documents within 20 days of the date of the filing of this Order.

Defendants’ request for monetary sanctions against Plaintiff is GRANTED. Plaintiff shall pay $3,578.50 to Defendant within 20 days of the date of this order.

 

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] The mailing addresses were in San Jose and San Diego. Defendant noted that the address in San Diego was obtained during Plaintiff’s original deposition on 29 July 2014. Hiroshima’s Dec. P. 2, Ln 5-10.