Case Number: BC700532 Hearing Date: March 17, 2020 Dept: 76

THE COURT WAIVES THE REQUIREMENT FOR ADVANCE NOTICE OF TELEPHONIC APPEARANCE UNDER CRC 3.670(h) FOR THIS MATTER. THE COURT ENCOURAGES COUNSEL TO APPEAR TELEPHONICALLY. COUNSEL WISHING TO SUBMIT ON THIS TENTATIVE SHOULD CONTACT THE STAFF OF DEPARTMENT 76 TO DO SO.

Motion To Compel Deposition

Defendant Plastic Express moves to compel Plaintiff’s deposition and requests the imposition of sanctions. Plaintiff has not submitted to a deposition on the date noticed, and would not agree to a date for the deposition to be reset.

CCP § 2025.450 provides:

(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 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 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 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 or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

(c)

(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.

(Bold emphasis and underlining added.)

The notice of deposition, attached as Exhibit A to the Declaration of Janelle M. Dease, does not include a request for production of documents. Thus, Defendant need not demonstrate good cause for production of any documents.

The Court examines whether Defendant’s counsel engaged in sufficient meet and confer efforts. The Declaration of Janelle M. Dease reflects that on January 29, 2020, Defendant’s counsel served a Notice of Deposition of Plaintiff Sergio Angel Garcia to take place on February 19, 2020. Dease Decl., ¶ 2; Exh. A. Defendant’s counsel also sent an email to Plaintiff’s counsel inviting a discussion to reschedule the deposition date if needed. Dease Decl, ¶ 3; Exh. B. Defendant’s counsel did not hear anything, so on February 13, 2020, she called and emailed Plaintiff’s counsel to confirm Plaintiff’s Garcia noticed for February 19, 2020. Dease Decl., ¶ 4. Plaintiff’s counsel responded that same day, indicating that February 19, 2020 was not available and asked for alternative dates. Dease Decl., ¶ 4; Exh. B.

Plaintiff’s counsel’s response on February 13, 2020 at 10:31 AM was: “We have all had the flu, and are just getting back into the officer. Please provide some alternate dates as 2/19 is not available. Thank you, Suzanne E. Rand-Lewis.” Id. at 10:35 AM, Defendant’s counsel Janelle Dease responded: “Please choose any date the week of February 24 or the week of March 2. Please let me know by Tuesday.” (Bold emphasis added.) To this, Plaintiff’s counsel responded at 10:36 AM: “OK. I’m still out sick, please feel free to follow up.” Id. Plaintiff’s counsel’s response did not address Defendant’s counsel’s invitation to select an alternative date, and was in effect, a brush-off. Defendant’s counsel recognized this by responding at 10:52 AM:

I’m not sure what you’re asking me to follow up on. If you would like to move the 02/19 deposition date, then please select the date that you and Mr. Garcia are available, out of the 10 options offered: the week of February 24 or the week of March 2. It is your turn to respond. Please let me know by Tuesday. If you do not respond, then I must assume that Mr. Garcia will not cooperate in the scheduling and voluntarily appearing for his deposition. Id. (bold emphasis added). Defendant’s counsel’s characterization of this exchange as placing the responsibility upon Plaintiff’s counsel to select an acceptable date is correct.

On February 14, 2020, Plaintiff’s counsel served an objection that the deposition date was unilaterally set by Defendant without consulting Plaintiff’s counsel, Plaintiff’s counsel is unavailable on the date set, and Plaintiff’s counsel is clearing alternate dates, so the deposition can be set on a mutually agreeable date. Dease Decl., Exh. C. This objection is not a valid objection under CCP § 2025.410. See CCP § 2025.450(a) CCP § 2025.410 addresses a defective notice of deposition that does not comply with Article 2 (CCP § 2025.210 et seq.) See CCP § 2025.410(a). The objection that a deposition was unilaterally set is not the type of objection contemplated by CCP § 2025.210 et seq., which deals with procedural requirements such as when a defendant or plaintiff may serve a deposition notice (CCP § 2025.210), the contents required to be included in a deposition notice (CCP §§ 2025.220, 2025.230), to whom notice of the deposition must be given (CCP § 2025.240), the location of the deposition (CCP §§ 2025.250, 2025.260), the number of days required to be given in advance of the deposition (CCP § 2025.270), and the manner of service upon party deponents (CCP § 2025.280).

Defendant’s counsel emailed Plaintiff’s counsel the following on February 20, 2020 at 8:26 AM.:

I have not received any available dates for Mr. Garcia’s deposition, which we agreed to reset from 2/19 at your request. I do not want to unilaterally set the deposition, only to have to spend the time and money on taking a non-appearance. If I do not hear from you by Friday, I will accept that as Plaintiff having no intention of voluntarily appearing for his deposition, and I will proceed with a motion to the court.

Defendant’s counsel’s indication that a non-response would be deemed as indicative of Plaintiff’s intention not to appear was justified.

This motion to compel was filed on February 24, 2020—four days after Defendant’s counsel indicated in the email that a motion to compel would be filed. The foregoing chronology reflects a reasonable attempt to meet and confer by Defendant’s counsel to resolve the date for Plaintiff’s deposition. It appears that Plaintiff’s counsel has been dragging her feet in terms of even offering a date or dates on which Plaintiff could appear. In this regard, Defendant is entitled to an order compelling Plaintiff to attend his deposition, lest Plaintiff’s counsel slow-foot the process of agreeing to a firm deposition date.

Plaintiff’s counsel’s characterization of this dispute as “simply a scheduling matter that does not warrant Court intervention” (Decl. of Suzanne E. Rand-Lewis, ¶ 2) is inaccurate. Plaintiff’s counsel did not offer any dates, and the inference is reasonable that no dates would be forthcoming absent the pressure of an order compelling Plaintiff’s deposition. Indeed, bolstering this conclusion is the fact that nowhere in the Opposition does Plaintiff even offer a date on which he can appear for his deposition.

Accordingly, the motion to compel Plaintiff’s deposition is GRANTED. Plaintiff’s deposition is to occur within 10 days of this order.

The Court finds that both Plaintiff and Plaintiff’s counsel are responsible for Plaintiff’s failure to select an alternative date for deposition. The request for sanctions against Plaintiff and his counsel Gary Rand, Esq. and Suzanne E. Rand-Lewis, Esq. Such is GRANTED in the reduced amount of $2,011.65 (6 hours a $325/hour + $61.65 in filing fees), jointly and severally. Sanctions are to be paid to Defendant’s counsel within 10 days of this order.