Case Number: BC675229 Hearing Date: January 24, 2019 Dept: 4B

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO COMPEL DEFENDANT’S DEPOSITION; GRANTED

On September 7, 2017, Plaintiff Theta M. Eikenberry (“Plaintiff”) filed this action against Defendants Mario Misael Lozano (“Defendant”), Josefina Zuno, and Enrique Zuno aka Enrique Pena dba Penas Trucking (collectively, “Defendants”) for motor vehicle and general negligence relating to a July 19, 2016 automobile accident. Plaintiff moves to compel Defendant’s appearance and production of documents at deposition.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).)

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. (Code Civ. Proc., § 2025.410, subd. (c).) “If, after service of a deposition notice, a party . . . without having served a valid objection . . . 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 notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

Since March 2018, Plaintiff’s counsel has noticed Defendant’s deposition four times. After Plaintiff served the first deposition notice, the parties agreed to take the deposition off calendar and to choose a mutually convenient date. (Declaration of Andrew R. Myers, ¶¶ 3, 4.) After requests to obtain available dates went unanswered, Plaintiff unilaterally noticed Defendant’s deposition for July 26, 2018. (Myers Decl., ¶¶ 5, 6.) On July 24, defense counsel informed Plaintiff’s counsel Defendant would not appear on July 26. (Myers Decl., ¶ 7.) Plaintiff’s counsel attempted to obtain available dates, but was against forced to unilaterally notice Defendant’s deposition for September 18, 2018. (Myers Decl., ¶¶ 8-14.) On September 17, defense counsel advised Defendant would not appear on September 18. (Myers Decl., ¶¶ 15, 16.) After multiple attempts to obtain available dates, defense counsel offered November 9, 2019. (Myers Decl., ¶¶ 17-20.) On November 8, defense counsel informed Plaintiff’s counsel that Defendant would not appear on November 9. (Myers Decl., ¶ 22.) After multiple attempts to accommodate Defendant’s schedule, Plaintiff went forward with the November 9 deposition and took a certificate of non-appearance. (Myers Decl., ¶ 23.) Plaintiff moves to compel Defendant’s deposition and monetary sanctions.

Defendant does not dispute any of the aforementioned facts. Rather, Defendant argues this Motion is moot because on January 9, 2019, he provided January 23, 25, or 28 as available dates for his deposition. Defendant also argues Plaintiff has not established good cause for the documents requested in the deposition notice and monetary sanctions should not be awarded because Plaintiff has not suffered prejudice since trial is set for March 7, 2019.

Given Defendant’s history of canceling his deposition the day before the scheduled date, even when set on a date offered by Defendant, the Court finds a formal court order to appear is warranted. Plaintiff’s late objections to the demand for documents are cut and paste boilerplate and not well taken. The documents requested relating to Plaintiff’s insurance and cell phone use at the time of the accident are reasonably calculated to lead to the discovery of admissible evidence and not otherwise objectionable.

The Motion to compel Defendant’s appearance and production of documents is GRANTED and Defendant ordered to appear for his deposition and produce the requested documents on January 23, 25, or 28. If Plaintiff is not available on those dates, Defendant is ordered to appear for a deposition and produce the requested documents before February 5, 2019.

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).) On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent. (Code Civ. Proc., § 2025.450, subd. (g)(2).)

This Motion was filed on December 18, 2018 and Defendant did not provide available dates to Plaintiff’s counsel until January 9, 2019. Given this and Defendant’s course of conduct relating to the four prior noticed deposition dates, it is clear this Motion was necessary to compel Defendant’s appearance. The request for monetary sanctions is GRANTED and imposed against Defendant and counsel, jointly and severally, in the reduced amount of $660.00 for two hours at Plaintiff’s counsel’s hourly rate of $300.00 and $60.00 filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.