Case Number: BC567985 Hearing Date: May 05, 2016 Dept: 93

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 93

TYRINA GARCIA,

Plaintiff,

vs.

MISSION COMMUNITY HOSPITAL FOUNDATION,

Defendant.
Case No.: BC567985

Hearing Date: May 5, 2016

Time: 1:30 p.m.

[TENTATIVE] ORDER RE:

MOTION TO COMPEL PLAINTIFF TO ATTEND AND TESTIFY AT DEPOSITON AND REQUEST FOR REASONABLE EXPENSES

Defendant MISSION COMMUNITY HOSPITAL FOUNDATION’S Motion to Compel Plaintiff’s Deposition is GRANTED. Plaintiff is ordered to appear for deposition within the next 10 days or as the parties may agree.

The Court declines to award sanctions against plaintiff’s counsel Jack Panagiotis because CCP §2025.450(g)(1) allows sanctions only against the deponent or the party with whom the deponent is affiliated.

The Court considered the moving papers, opposition, and reply.

BACKGROUND

This is slip and fall case. On December 26, 2014, Tyrina Garcia filed a complaint against Mission Community Hospital Foundation for premises liability. Plaintiff alleges that on December 17, 2013, at 10:30 AM, she was a business invitee and lawfully upon the premises of Mission Community Hospital, located at 14850 Roscoe Blvd., Panorama City. Plaintiff was caused to slip, fall, and suffer severe and disabling injuries as a direct result of the negligence and carelessness of defendants.

On June 5, 2015 defendant filed an answer.

DISCUSSION

A. MOTION TO COMPEL DEPOSITION OF PLAINTIFF

Defendant requests an order to compel the deposition of plaintiff.

CCP §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 . . . 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.”

Defendant argues that it has properly noticed plaintiff’s deposition four times over the past ten months and plaintiff has yet to appear for her deposition. On June 5, 2015, defendant noticed plaintiff’s deposition for September 8, 2015. Plaintiff’s counsel Jack Panagiotis advised that he was unavailable for deposition that day and that he would provide defendant with plaintiff’s availability but he never did.

On January 8, 2016, defendant served a “Second Notice” of deposition, noticing plaintiff’s deposition for January 28. On January 21, pursuant to plaintiff’s counsel’s request, the deposition was rescheduled for March 10 because plaintiff’s counsel was unavailable February and beginning of March.

On January 26, while at court for an ex parte application to continue trial, plaintiff’s counsel approached defense counsel regarding setting the deposition of Nicholas Sartain, a security officer for defendant, for March 10. Defense counsel contends that he made no affirmative agreements regarding the deposition of Sartain on that date.

On February 2, plaintiff’s counsel noticed the deposition of Sartain for March 10. On February 25, after meeting and conferring, plaintiff noticed the deposition of Sartain for March 16.

On March 1, defendant amended plaintiff’s March 10 deposition location to defense counsel’s office.

On March 8, the March 10 deposition of plaintiff was continued to April 5 because of a dispute regarding location of deposition. Counsel met and conferred regarding plaintiff’s deposition, and defendant contends that pursuant to plaintiff’s counsel’s request, defendant noticed plaintiff’s deposition for April 5 at plaintiff’s counsel’s office. See “Fourth Notice of Testimony and Records Depositions of Plaintiff.” Defense counsel also notified plaintiff’s counsel that she was unavailable for Sartain’s deposition on March 16 and provided six alternative dates.

On March 22, plaintiff’s counsel or counsel’s representative dropped off a notice of deposition for Sartain at defense counsel’s office for April 4. Defendant claims that plaintiff’s counsel was aware of defense counsel’s unavailability for April 4. On March 28, plaintiff sent an objection as to the April 4 date for Sartain’s deposition and a letter reiterating defense counsel’s unavailability for that date. On April 1, defense counsel sent a letter responding to plaintiff’s request for confirmation as to the deposition of Sartain for April 4, stating again that she was unavailable for April 4.

On April 4, defense counsel’s secretary purportedly spoke with plaintiff’s counsel twice to confirm plaintiff’s deposition for the next day but he refused to give a yes or no answer. Plaintiff’s counsel sent a fax to defense counsel with respect to Sartain’s deposition stating “[i]t would seem appropriate that we put aside our differences and reset the plaintiff’s deposition” and Sartain’s deposition. Defense counsel responded via fax that defendant was moving forward with the properly noticed deposition of plaintiff on April 5.

Defendant contends that plaintiff failed to appear for her deposition on April 5 at plaintiff’s counsel’s office. Defendant contends that although plaintiff’s counsel was present at his office he refused to speak to plaintiff’s counsel or the court reporter. The receptionist indicated that she saw plaintiff’s counsel leave the office. Defense counsel took a certificate of non-appearance at 10:33 AM.

In opposition, plaintiff argues that good cause does not exist because cooperation between the parties was cordial until disruption occurred in March. Plaintiff contends that Sartain and counsel failed to appear on March 10. As to defense counsel’s secretary’s call on April 4 to plaintiff’s counsel, he states in his declaration that he had difficulty hearing him because static on the telephone line was drowning and interrupting the secretary, and that he could not be understood. As to April 5, plaintiff’s counsel states in his declaration that he was in his office and had arranged for a conference room for plaintiff’s deposition set for 10:00 AM. Counsel told a receptionist that when the court reporter and defense counsel arrived then she should direct them to the large conference room and advise his secretary that they were present. Counsel states that at 10:15 AM, he talked to the receptionist who purportedly stated that only the court reporter had arrived, and that he left his office to go to the lobby for about ten minutes. When he returned a receptionist advised him that the court reporter and defense counsel had left.

In reply, defendant reiterates that it properly noticed plaintiff’s deposition four times and plaintiff has yet to appear. As to plaintiff’s argument that Sartain and defense counsel failed to appear on March 10, it makes no sense and is irrelevant as to failing to produce plaintiff for deposition on April 5.

There is no evidence that plaintiff appeared for her deposition on April 5 at her counsel’s offices. In his declaration plaintiff’s counsel makes no reference to plaintiff even being at his offices. The deposition was properly noticed. Further, the date and place were agreed upon. Plaintiff provides no justification for her failure to appear.

B. MEET AND CONFER REQUIREMENT

A motion to compel deposition must be accompanied by a meet and confer declaration under CCP §2016.040. CCP §2025.450(b)(2). Defendant attempted to meet and confer with plaintiff by rescheduling the deposition numerous times and agreeing to hold the deposition at plaintiff’s counsel’s office and attempting to confirm the dates. In opposition, plaintiff contends that plaintiff’s counsel attempted to meet and confer with defense counsel on April 19 by leaving a voice mail message requesting a return call.

Defendant has not presented a declaration as to any meet and confer as to why plaintiff failed to appear for her deposition.

The Court GRANTS the motion to compel plaintiff to appear for her deposition.

C. SANCTIONS

If a motion to compel deposition 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).

The notice requests sanctions against plaintiff’s counsel Jack Panagiotis in favor of defendant in the amount of $1,916.15, consisting of an hourly rate of $165, 3 hours preparing motion, 3.5 hours travel to and from plaintiff’s counsel’s office and take a certificate of non-appearance, anticipated 2.5 hours to travel to and from Glendale office for appearance, $60 filing fee, and $371.75 for certificate of non-appearance.

Although plaintiff did not appear to act with substantial justification in failing to appear for her deposition, defendant did not request sanctions against her. See CCP §2023.040. As for sanctions against plaintiff’s counsel, plaintiff did not request sanctions under CCP section 2023.030.

Accordingly, the request for sanctions is DENIED.

Defendant MISSION COMMUNITY HOSPITAL FOUNDATION is ordered to provide notice of this ruling.

DATED: May 5, 2016

_____________________________
Howard L. Halm
Judge of the Superior Court