Case Number: BC648338 Hearing Date: March 07, 2018 Dept: 74

SIMAALSADAT MASAJEDIAN,

Plaintiff,

vs.

ERIC C. KIM, ET AL.,

Defendants

Case No.: BC648338

[TENTATIVE] ORDER GRANTING DEFENDANTS’ MOTION TO COMPEL DEPOSITION

TENTATIVE RULING: The motion is granted. Plaintiff is ordered to appear for deposition on March 21, 2108 at 10:00 a.m. at Leal · Trejo, APC, 3767 Worsham Avenue, Long Beach, CA 90808. The request for sanctions is denied.

Background

The complaint alleges Plaintiff is a student at defendant Los Angeles Community College District. Plaintiff took Civics and English as a Second Language and paid for those courses. When Plaintiff attempted to transfer, she was told there was a problem with her transcript. At that time she discovered that no grade was given for those courses. Plaintiff alleges Defendant is required to give grades for those courses, and the lack of grade is preventing her from transferring. The complaint alleges causes of action in: (1) promissory estoppel, bad faith and violation of regulations; (2) violation of regulations and promissory estoppel, (3) violation of regulations and promissory estoppel and (4) civil conspiracy.

Defendants move for an order compelling plaintiff to appear for her deposition on a date certain.

Motion for Order Compelling Plaintiff to Appear for Deposition

A motion lies to compel deposition attendance and document production, after service of a deposition notice, where a deponent fails to appear at, or proceed with, a deposition, without having served a valid objection. (Code Civ. Proc., § 2025.450, subd. (a).)

Plaintiff was served with a notice of deposition and served objections. Defendants addressed all of Plaintiff’s objections with an amended notice. Plaintiff served an objection stating she did not agree to more than one deposition. Plaintiff has not appeared for a deposition in this case. Plaintiff appears to be under the impression that the one deposition was the deposition noticed for October 26, 2017, at which she failed to appear. The deposition does not take place unless Plaintiff appears and is deposed. Plaintiff has yet to appear for deposition.

No meet and confer is required to compel initial deposition attendance, but instead there must be a declaration showing that moving party inquired about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).) “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124.)

Attorney Arturo N. Fierro’s deposition establishes that he contacted Plaintiff numerous times to inquire about her non-appearance and to schedule a deposition at a time convenient to plaintiff. Fierro exceeded the requirements of section 2025.450.

Plaintiff objects to the language in the notice that the deposition will continue day to day until completed. This is standard language in deposition notices, and has been approved by the appellate courts. Deposition notices properly state that a deposition will continue from day to day until completed. (Sprague v. Quifax, Inc. (1985) 166 Cal.App.3d 1012, 1041.) Plaintiff’s fears that this language will be used to force her to continue appearing due to interruptions in the deposition are unfounded. For Defendants’ attorney to do so would be a misuse of the discovery process.

Plaintiff also argued that she has participated in written discovery. Defendants are entitled to pursue all methods of discovery. “A party is permitted to use multiple methods of obtaining discovery and the fact that information was disclosed under one method is not, standing alone, a proper basis for refusing to provide discovery under another method.” (Irvington-Moore, Inc. v. Sup. Ct. (1993)14 Cal. App. 4th 733, 739.)

Plaintiff is obligated to cooperate in discovery and Defendants can take her deposition as a matter of right. The motion is granted.

Plaintiff is cautioned that her failure to appear for deposition could subject her to sanctions, including monetary sanctions and up to and including dismissal of her case.

Sanctions

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code Civ. Proc., § 2023.040.)

The notice of motion did not request sanctions, identify against whom sanctions were sought, or specify a type of sanctions sought. The request for sanctions is denied.