Case Number: 16K15201 Hearing Date: May 16, 2018 Dept: 94

Defendant City of Santa Monica’s Motion to Compel Plaintiff Michael William Swain, Jr., to appear for a deposition is GRANTED. Plaintiff is ordered to appear for deposition on a date to be set at the hearing on this motion. Sanctions are awarded in the amount of $810 payable by Plaintiff and his counsel of record Vahan Yepremyan of the Yepremyan Law Firm within thirty (30) days.

At the hearing on this Motion, the Court is to hear from the parties on the date to be set for the deposition of Plaintiff and on a new trial date and the extension of discovery cut off dates

Legal Standard

CCP section 2025.450(a) states in relevant part:

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, 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.

(CCP § 2025.450(a).) A motion to compel deposition shall be accompanied by a meet and confer declaration under Section 2016.040. (CCP § 2025.450(b)(2).) A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (CCP § 2025.450(g)(1).)

Discussion

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

Defendant failed to provide such a declaration. Instead, Defendant’s counsel declares that he has “attempted to meet and confer and work with Plaintiff and his counsel as require under CCP § 2025.450(b)(2) for the past 12 months.” (Gams Decl. ¶ 6.) This is unsatisfactory; the declaration does not actually make clear whether Defendant contacted Plaintiff following his failure to appear for the deposition.

Nevertheless, in light of the fact that Plaintiff (1) originally failed to respond to discovery; (2) failed to oppose Defendant’s last motion to compel discovery; (3) still has not entirely complied with the Court’s order to provide discovery (Gams Decl. ¶ 6); (4) did not appear for his deposition; and (5) has not filed an opposition to this motion, the Court acknowledges that Plaintiff has demonstrated a pattern of disregarding his discovery obligations, and the Court is therefore inclined to consider the motion on its merits.

Defendant served Plaintiff with a notice of deposition on February 7, 2018. (Gams Decl. ¶ 3.) The deposition was set for March 27, 2018. (Gams Decl. ¶ 4.) Plaintiff failed to appear on that date, and Defendant therefore now seeks to compel Plaintiff to appear for a deposition. (Gams Decl. ¶ 5, Exh. B.)

Based on the foregoing, Defendant’s motion to compel deposition is GRANTED. Plaintiff is ordered to appear for deposition on a date to be set at the hearing on this motion.

Sanctions

Pursuant to CCP § 2025.450(g), “[i]f 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.”

Defendant requests $810 in sanctions, representing four hours of work at a rate of $150/hour, plus $210 incurred to pay the court reporter for the deposition at which Plaintiff did not appear.

The Court finds this amount to be reasonable and awards Defendant sanctions in the amount of $810.00 payable by Plaintiff and his counsel of record Vahan Yepremyan of the Yepremyan Law Firm within thirty (30) days.

Moving party to give notice.