Case Number: 16K14524 Hearing Date: May 10, 2018 Dept: 94

Defendant’s motion to compel is GRANTED. Plaintiff’s deposition is to occur within 10 days at a reasonable time and place determined by Defendant. Defendant’s request for sanction is GRANTED IN PART in the reduced amount of $2025.95 against Plaintiff Payman Simoni, and are to be paid to Defendant’s counsel within 20 days.

Background

On November 23, 2016, Plaintiff Payman Simoni M.D. filed his complaint against Defendant Christina L H arising from Defendant’s allegedly defamatory Yelp review of Plaintiff’s plastic surgery practice. On December 13, 2018, Defendant served Plaintiff with a notice of deposition, noticed for January 19, 2018. Plaintiff failed to appear at the January 19, 2018 deposition and a certificate of non-appearance was taken.

On March 16, 2018, Defendant filed the instant motion to compel after meeting and conferring with Plaintiff’s counsel. On April 27, 2018, Plaintiff filed an opposition. On March 3, 2018, Defendant filed her reply.

Standard

Natural persons, including parties to the action, must be deposed within 75 miles from their residence; or in the county where the action is pending at a place within 150 miles of the deponent’s residence. (CCP § 2025.250(a).)

CCP § 2025.450(a) states:

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.

A motion to compel deposition shall be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (CCP § 2025.450(b)(2).)

Discussion

Compel Plaintiff’s Deposition

Here, Defendant served Plaintiff with a proper notice of deposition on December 13, 2018. (Papaefthimiou Decl. ¶¶ 3-6; Ex. 1.) Plaintiff failed to serve objections to the Deposition Notice. (Papaefthimiou Decl. ¶ 7; Ex. 4.) On January 16, 2018, Plaintiffs’ counsel emailed and stated that Plaintiff “will not be available for the scheduled deposition date” and assured that he was “working on obtaining alternative dates.” (Ibid.) Defendant requested that Plaintiff confirm that a notice of nonappearance would not be necessary to bring a motion to compel. (Papaefthimiou Decl. ¶¶ 8-12.) Plaintiff did not consent to this request and provided no further dates for deposition. (Ibid.) Plaintiff failed to appear at the January 19, 2018 deposition and a certificate of non-appearance was taken. (Papaefthimiou Decl. ¶ 13; Ex. 5.) Additionally, Defendant’s attached declaration demonstrates compliance with the meet and confer requirement. (Papaefthimiou Decl. ¶¶ 15-18; See CCP § 2025.450(b)(2).)

Based on the declarations and exhibits, Defendant is clearly entitled to depose Plaintiff because Plaintiff failed to show up to a properly noticed deposition within 75 miles of Plaintiff’s residence. (Papaefthimiou Decl. ¶¶ 3-6, Exs. 1, 5.) Further, Plaintiff failed to timely object to the deposition. (Papaefthimiou Decl. ¶ 7, Ex. 4.) Plaintiff does not contest this in opposition, but simply argues that traveling 57 miles would be too burdensome. (See Opp. pp. 1-3; Simoni Decl. ¶¶ 2-6.) Plaintiff cites no authority that would support the proposition that the deponent controls the place where the deposition takes place without a timely objection. Therefore, Defendant’s motion will be granted.

Sanctions

Defendant requests sanctions against Plaintiff Payman Simoni in the amount of $2,670.95.

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. (CCP § 2025.450(g)(1).)

Based on the facts discussed above, Plaintiff did not act with substantial justification when he failed to appear at his deposition. From the declarations, Plaintiff did not show up to his deposition because it was over 50 miles away from his office and he has a busy practice. (Papaefthimiou Decl. ¶¶ 7-12, Ex. 4; Simoni Decl. ¶¶ 2-6.) This is not a substantial justification, and does not explain why Plaintiff did not properly object to the notice of deposition. Further, Plaintiff does not explain why Plaintiff cannot clear his schedule given the non-emergency nature of his surgery practice and the over months’ notice he received.

Defendant requests costs in the amount of $520.95 for the notice of non-appearance. (Papaefthimiou Decl. Ex. 7.) Defendant requests fees in the amount of $2,150.00, for 4.3 hours of legal work associated with the instant motion at $500.00 an hour. (Papaefthimiou Decl. ¶¶ 19-28.) The Court finds the amount of fees to be excessive. Therefore, the court will reduce the sanctions to $1,503.00.

Plaintiff argues that the costs should not be recovered because Defendant knew that Plaintiff was not showing up to the deposition. However, Plaintiff refused to waive a notice of non-appearance. (Papaefthimiou Decl. ¶¶ 8-12; Ex. 4.) The Court will award the full costs requested, as they were reasonably incurred in connection with the motion to compel.

Accordingly, Defendant’s motion to compel is GRANTED. Plaintiff’s deposition is to occur within 10 days at a reasonable time and place determined by Defendant. Defendant’s request for sanction is GRANTED IN PART in the reduced amount of $2025.95 against Plaintiff Payman Simoni, and are to be paid to Defendant’s counsel within 20 days.

Moving party to give notice.