Case Number: 18STCV04925 Hearing Date: September 09, 2019 Dept: 4A

Motion to Compel Deposition

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

BACKGROUND

On November 14, 2018, Plaintiff Sally Moawad (“Plaintiff”) filed a complaint against Defendant Geovani Xivir Carrillo (“Defendant”) alleging negligence for a vehicle collision that occurred on April 12, 2018.

On August 12, 2019, Plaintiff filed a motion to compel the deposition of Defendant pursuant to California Code of Civil Procedure section 2025.450.

Trial is set for May 13, 2020.

PARTY’S REQUESTS

Plaintiff asks the Court to compel Defendant to appear and testify at a deposition on September 9, 2019 based on his failure to appear at two prior depositions.

Plaintiff also asks the Court to impose $3,435 in monetary sanctions against Defendant and his counsel of record to cover the expenses in bringing this motion.

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).)

California Rules of Court, rule 3.1348, subdivision (a) states: “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 was provided to the moving party after the motion was filed.”

DISCUSSION

On March 28, 2019, Plaintiff served a deposition notice on Defendant setting a deposition date for June 4, 2019. (Hoonanian Decl., ¶ 3, Exh. 1.) Defendant did not appear at this deposition. (Ibid.) Plaintiff also attaches an Exhibit 2 indicating a second deposition notice served on Defendant. However, Plaintiff does not authenticate this document. Plaintiff’s declaration erroneously refers to Exhibit 1 as the second notice of deposition. Nevertheless, as seen below, Defendant’s failure to appear at the June 4, 2019 deposition is sufficient for the Court to compel Defendant’s attendance at a deposition.

The Court finds Defendant’s failure to appear at the June 4, 2019 deposition constitutes sufficient grounds to grant the motion. There is no evidence that Defendant acted with a substantial justification or that there is a circumstance that would make the imposition of sanctions unjust. As such, an imposition of monetary sanctions is proper.

Defendants’ request for $3,435 in monetary sanctions consists of 2.5 hour in preparing the motion, 1.5 hours in preparing a reply, 5 hours in traveling to and appearing at the hearing at a rate of $375 an hour, plus one $60 filing fee and $278.30 in court reporter costs. (Hoonanian Decl., ¶ 5.) The Court finds this amount to be unreasonable because the motion involved simple matters, no reply was filed, and the amount of time anticipated to make it to the hearing and attend the hearing is excessive given that Plaintiff’s counsel’s firm is located in Studio City. Rather, the Court finds $1,463.30 ($350/hr. x 3 hrs. plus one $60 filing fee plus $278.30 in court reporter costs) as a reasonable amount of sanctions to be imposed against Defendant and Defendant’s counsel of record for their abuse of the discovery process.

The motion is GRANTED.

Defendant is ordered to appear at a deposition within 30 days of the date of this order or on a date and time mutually agreeable between the parties.

Defendant and Defendant’s counsel of record are ordered to pay Defendant $1,463.30, jointly and severally, within 30 days of this order.

Plaintiff is ordered to give notice of this ruling.