Case Number: BC642496 Hearing Date: June 01, 2018 Dept: 2

Plaintiff’s Motion to Compel Depositions of Defendant’s Witness, Robert Reighley; Request for Sanctions, filed on 5/4/18 is GRANTED in part. A party can move to compel a party’s deposition where the witness fails to appear. Cal. Code Civ. Proc. § 2025.450(a).

On 1/16/18, Plaintiff’s counsel sent a meet and confer email requesting that Defendant produce Mr. Reighley, a person identified as a potential witness who had inspected the incident site after Plaintiff’s accident and signed the sweep sheet. Motion Ex. 5, 45:4-7, 60:10-14. Mr. Campos, counsel for Defendant, offered February 1, 6, 8, or 14. Motion, Ex. 7.

Accordingly, on 1/26/18 Plaintiff served a Notice of Taking Deposition of Mr. Reighley, set for 2/14/18. Motion, Ex. 8.

On 2/9/18 Defendant’s counsel sent email canceling the deposition and informing that Mr. Reighley could be produced for deposition after 4:00 p.m. on weekdays because of his new job, and asked Plaintiff to provide alternative dates. Motion, Ex. 9. Although Mr. Campos knew at this point that Mr. Reighley was no longer employed by Defendant (Campos Declaration ¶ 5), he did not require that Plaintiff subpoena the witness.

Instead, Plaintiff relied on Mr. Campos’ representation, and offered available dates. Plaintiff’s counsel asked that Defendant’s counsel confirm that Mr. Campos would accept service of the deposition notice on Mr. Reighley’s behalf. Motion, Ex. 10.

Plaintiff served Special Interrogatories, Set Three, Interrogatory #54, asking for Mr. Reighley’s last known address and telephone number. Motion, Ex. 11.

On 2/13/18, Mr. Campos confirmed that he would provide the dates for Mr. Reighley’s deposition and confirmed that he would accept service of the deposition notice on Mr. Reighley’s behalf. Motion, Ex. 12.

Because Defendant’s counsel did not provide available dates, Plaintiff sent an email reserving 3/28/18 as the deposition date and stated he would not take it off calendar unless Defendant’s counsel provided alternative dates. Motion, Ex. 13. A Notice of Taking Deposition was also served on 2/26/18, for the deposition of Mr. Reighley set for 3/28/18. Motion, Ex. 14. Defendant did not object. Declaration of David Z. Sohn, ¶ 21.

On 2/27/18, Defendant served verified responses to Special Interrogatories, Set Three, again confirming that Mr. Reighley could be reached through Defendant’s counsel, and refusing to provide Mr. Reighley’s contact information on grounds of privacy. Motion Ex. 15, 6:8-22.

On 3/28/18, Mr. Reighley failed to appear for his duly noticed deposition. Defendant does not provide any substantial justification for failing to appear. Mr. Campos affirms that Mr. Reighley agreed to appear for his deposition on 3/28/14 at 4:00 p.m. Campos Declaration ¶ 9.

The court imposes sanctions of $1,460.00 against Defendant who has not shown substantial justification for failing to proceed with Mr. Reighley’s deposition, especially given that Mr. Reighley agreed to appear, and Defendant agreed to accept Notice of Taking Deposition of Mr. Reighley as referenced above. Code Civ. Proc., § 2025.450

The court cannot compel Mr. Reighley’s deposition as he is not a party to the action and is no longer employed by Defendant. Declaration of Victor Campos, ¶ 5. The appropriate method for taking the deposition of a person who is not a party or an employee of a party is by deposition subpoena. Cal Code Civil Procedure § 2020.010(b). Therefore, the court cannot compel the non-party witness to appear as he has not been served with a deposition subpoena.

Moving party is ordered to give notice.