2017-00218499-CU-OE

Nelia O. Mendoza vs. Alexander’s Residence For Seniors, Inc.

Nature of Proceeding: Motion to Compel 1) Deposition of Christine D. Karr 2) Production of

Filed By: Harrington, Michael J.

Plaintiff’s Motion to Compel non-party Christine Karr , individually and dba Karr Business Services to Comply with Deposition Subpoena by appearance at her deposition and production of documents listed in the deposition subpoena is granted. However monetary sanctions are denied as set forth below.

Although Ms. Karr filed no opposition individually, the Alexander Residence defendants have filed a “Non-opposition” stating that Ms Karr does not oppose taking her deposition. Ms. Karr was the bookkeeper for Alexander Residence and is the present bookkeeper for the current owner. Counsel for Alexander Residence indicates that they represent the former employee [Karr] for purposes of this deposition, and are responsible for producing her for her deposition being ordered herewith, after meeting and conferring with plaintiff’s counsel as to the date, time and place for the deposition. The parties are to meet and confer on a date, time and place for the deposition. Christine Karr is ordered to appear at the deposition on the date determined. Failure to appear may result in future monetary sanctions, if properly noticed pursuant to statute.

Monetary sanctions against Ms. Karr are denied at this time. The notice of motion does not state against whom sanctions are sought. The notice states merely: “Further, this moving party seeks sanctions in the amount of $3,610 pursuant to §§ 2023.010, 2023.030, and 2031.310, and the power of this court to impose monetary sanctions for the defendant’s lack of compliance. (emphasis added)

Thus, because the monetary sanctions are not sought from the non-party deponent Christine Karr in the notice of motion, they are not being awarded. Rather, the notice of motion indicates they will be sought from “defendant” rather than the non- party deponent. CCP 2023.040 requires that a request for sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought. The notice also fails to cite the correct code section that provides for sanctions for failure to appear for a deposition. Plaintiff cited only the general statutes providing for monetary sanctions and the statute concerning requests for production rather than the specific statute concerning failure to appear at a deposition that authorizes monetary

sanctions.

As an additional reason for not imposing sanctions against Ms. Karr, the motion was not properly served on the non-party pursuant to CRC 3.1346, which requires that motions to compel answers at depositions or production of documents at depositions to be personally served on the non-party deponent, unless otherwise agreed by the deponent. The proof of service of the motion did not include Ms. Karr, only defendants. However, since Alexander defendants have agreed to produce Ms. Karr who was their former employee and who is now employed by the current owner of the facility, the motion is being granted despite the defective service.

The Court realizes the confusion caused by defendants’ counsel who has not been forthcoming as to whether or not they represent the client/third party witness. Ms. Karr is either represented by them or she is not. Counsel for defendants shall file the appropriate notices to clarify representation so that plaintiff knows on whom to serve future notices.

The parties are to meet and confer on a date, time and place for the deposition. Christine Karr is ordered to appear at the deposition on the date determined. Failure to appear may result in future monetary sanctions, if properly noticed pursuant to statute.