Case Number: BC665801 Hearing Date: December 28, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND MONETARY SANCTIONS; GRANTED

On June 20, 2017, Plaintiff Manual Sanchez (“Plaintiff”) filed this action against Defendants Silverco Enterprises and Avon Rent-A-Car and Truck (collectively “Defendants”) for motor vehicle and general negligence relating to a June 27, 2015 automobile accident. Defendant moves to compel Plaintiff’s appearance at a deposition and the production of documents.

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

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) A party may also move for an order staying the taking of the deposition and quashing the deposition notice. (Code Civ. Proc., § 2025.410, subd. (c).) “If, after service of a deposition notice, a party . . . without having served a valid objection . . . 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 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 Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)

On August 8, 2018, Defendant served a deposition notice and demand for documents on Plaintiff setting Plaintiff’s deposition for August 30. (Declaration of Jeffrey B. Bohrer, ¶ 3.) Plaintiff’s counsel advised defense counsel multiple times that he could not locate Plaintiff and could not confirm the deposition date. (Bohrer Decl., ¶¶ 6-9.) On August 30, Defendant took certificates of non-appearance. (Bohrer Decl., ¶ 10.) On September 12, 2018, Plaintiff’s counsel advised that Plaintiff had provided available dates, but that counsel was unavailable on each date. He stated he would provide available dates as soon as possible. (Suarez Decl., ¶9.)

After Defendant filed the motion to compel, Plaintiff was deposed on November 5, 2018. On December 4, 2018, this motion was heard. Defendants informed the Court that Plaintiff had not produced the documents demanded in the deposition notice. The motion was continued to allow consideration of Plaintiff’s late-filed opposition.

Therefore, to the extent these documents are still outstanding, the motion to compel is GRANTED and Plaintiff is ordered to produce documents responsive to Defendants’ demand within twenty (20) days of the date of this Order.

Defendants also seek monetary sanctions. 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).) On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent. (Code of Civ. Proc., § 2025.450, subd. (g)(2).)

Further, the court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even where the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, Rule 3.1348(a).)

Defendants argue Plaintiff did not provide available dates for his deposition until after this Motion was filed and in excess of two months after Plaintiff’s deposition was originally noticed. Plaintiff contends the costs incurred by Defendants on August 30 would have been incurred anyway, because a representative of Revelry, Inc., Plaintiff’s employer, was also set to be deposed that day. Plaintiff also argues Defendants knew, more than 24 hours before the August 30 deposition that Plaintiff would not appear, but Defendants failed to mitigate their costs. Plaintiff seeks $1,750.00 in sanctions against Defendants for the costs of opposing this Motion.

The Court finds Plaintiff failed to appear for his properly-noticed deposition. Unless Plaintiff served a written objection to the deposition notice at least three days prior to the deposition date, Defendants were not obligated to take the deposition off-calendar. Plaintiff’s conduct in not keeping his counsel apprised of his current contact information while his action is pending and he has discovery obligations caused to the filing of this Motion and costs incurred by Defendants. Therefore, Defendants’ request for sanctions is GRANTED and sanctions are imposed against Plaintiff and counsel, jointly and severally, in the reduced amount of $760.00 for two hours at defense counsel’s hourly rate of $350.00 and the $60.00 filing fee. The $342.90 certificate of non-appearance fee is not included because Plaintiff’s counsel informed Defendants’ counsel that Plaintiff would not be appearing on the noticed date. The sanctions are to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.