Case Number: BC617704 Hearing Date: May 01, 2018 Dept: 7

ORDER RE: DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND REQUEST FOR MONETARY SANCTIONS; MOTION GRANTED

On April 20, 2016, Plaintiff Vincent Young (“Plaintiff”) filed this action against Defendants Jusleen Sodiwal and Parveen Sodiwal (collectively, “Defendants”) for vehicular negligence and negligent entrustment relating to an April 24, 2014 bicycle versus automobile accident. On September 6, 2017, Defendant served a Notice of Taking of Deposition on Plaintiff, scheduling his deposition for November 1, 2017. (Declaration of Larry P. Bilbrew, ¶ 2; Exh. A.) After Plaintiff failed to serve timely responses and requested an extension to provide responses to written discovery, Defendant continued the deposition date to February 12, 2018. (Bilbrew Decl., ¶¶ 3-6.) On February 9, 2018, Plaintiff’s counsel’s office notified defense counsel that Plaintiff’s counsel was starting trial and requested Plaintiff’s deposition be rescheduled. Plaintiff’s counsel stated their office would provide alternative dates for Plaintiff’s deposition. (Bilbrew Decl., ¶ 7.)

Defense counsel refused to take Plaintiff’s deposition off calendar due to Plaintiff’s lack of cooperation in moving the case forward and delay in responding to written discovery. (Bilbrew Decl., ¶ 7.) Plaintiff did not appear for deposition on February 12, 2018 and a certificate of non-appearance was taken. (Bilbrew Decl., ¶ 8.) Plaintiff’s counsel and defense counsel have since communicated regarding settlement and scheduling Plaintiff’s deposition, but to date, Plaintiff’s counsel has not provided any dates for her deposition. (Bilbrew Decl., ¶¶ 10-12.)

Defendant seeks to compel Plaintiff’s deposition and seeks monetary sanctions.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code of 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 of Civ. Proc., § 2025.280, subd. (a).)

“If, after service of a deposition notice, a party . . . 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 of Civ. Proc., § 2025.450, subd. (a).) The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration. (Code of Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)

Plaintiff’s counsel argues the deposition should have been continued and that defense counsel did not sufficiently meet and confer before filing this motion. It is true that “[i]n scheduling depositions, reasonable considerations should be given to accommodating schedules or opposing counsel and of the deponent, where it is possible to do so without prejudicing the client’s rights.” (Guidelines for Civility in Litigation, L.A. Sup. Ct. Local Rules, Appendix 3.A(e)(3).) However, it appears defense counsel did not reschedule the deposition based on Plaintiff’s past delay in responding to discovery and wanted a record of his nonappearance.

Defense counsel informed Plaintiff’s counsel a notice of non-appearance would be taken, but that she would not file a motion to compel if Plaintiff’s counsel provided alternative dates for the deposition. (Reply Declaration of Amy Moscatel, ¶ 2.) After this Motion was filed, defense counsel stated she would take this Motion off calendar if Plaintiff appeared for his deposition prior to the hearing. The parties agreed to a deposition date of April 23, 2018, but on April 19, 2018, Plaintiff’s counsel advised he could not contact Plaintiff and said defense counsel should cancel the court reporter. (Moscatel Decl., ¶ 4.)

Even though defense counsel refused to reschedule the February 12, 2018 deposition, Defendant is not seeking reimbursement for the nonappearance fees and continues to meet and confer with Plaintiff regarding scheduling his deposition.

A properly-served deposition notice is sufficient to require a party to appear and testify at an oral deposition. (Code of Civ. Proc., § 2025.280, subd. (a).) Therefore, the Motion to compel Plaintiff’s deposition is GRANTED. Plaintiff is ordered to appear for deposition within twenty (20) days, or other date to which the parties agree.

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 of Civ. Proc., § 2025.450, subd. (g)(1).)

The request for monetary sanctions is GRANTED. Monetary sanctions are imposed against Plaintiff and his counsel of record, jointly and severally, in the amount of $347.50, for one hour preparing this motion, one hour attending the hearing, and $60.00 filing fee. Plaintiff and counsel are ordered to pay this monetary sanction to defense counsel within twenty (20) days of the date of this Order.

Moving party to give notice.