Case Number: KC065171    Hearing Date: August 12, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

HAMID TORKAMANHA,

Plaintiff(s),
v.

KATRINA ADAMS, et al.,

Defendant(s). Case No.: KC065171

Hearing Date: August 12, 2014

[TENTATIVE] ORDER RE:
MOTION TO COMPEL DEPOSITION TESTIMONY OF DEFENDANT KATRINA ADAMS, AND FOR MONETARY SANCTIONS

For the reasons set forth below, Plaintiff Hamid Torkamanha’s Motion to Compel Deposition Testimony of Defendant Katrina Adams is GRANTED. Defendant is ordered to appear for her deposition on September 4, 2014 at 10:00 am at the Law Offices of J. Shaffer Smith & Associates, 8383 Wilshire Blvd., Suite 660, Beverly Hills, California. Plaintiff’s request for sanctions is GRANTED in the amount of $1,299.70 against Defendant Katrina Adams.

I. BACKGROUND

Plaintiff Hamid Torkamanha moves to compel Defendant Katrina Adams’ deposition. Defendant has failed to appear for her deposition, which has been properly noticed six times over the past 13 months.
Defendant opposes the motion as to sanctions on the grounds that she has since provided Plaintiff with multiple dates for her deposition to take place and her failure to previously appear was the result of severe depression, stress, anxiety, gestational diabetes, sleep deprivation and high blood pressure. Defendant also argues that sanctions against the attorneys would be unjust because the attorney only recently learned from his client that she was unable to attend her deposition because of an illness.
Plaintiff replies that Defendant and defense counsel have strung him along for more than year with promises of deposition dates, resulting in wasted time and money.

II. ANALYSIS

Plaintiff’s motion to compel is brought pursuant to Code of Civil Procedure section 2025.450. This section provides further that if a motion to compel deposition is granted, the court shall impose a monetary sanction “unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP § 2025.450(g)(1).

The following facts are undisputed. Plaintiff mailed the first notice of deposition to Defendant on May 24, 2013, setting the deposition for July 10, 2013. Motion, Shaffer Decl., ¶ 6 and Exh. 1. Pursuant to Defendant’s request, the deposition was moved to August 21, 2013. Motion, Shaffer Decl., Exh. 2. On August 19, 2013, defense counsel advised Plaintiff’s counsel that Defendant would not appear for her deposition. Motion, Shaffer Decl., ¶ 8 and Exh. 3. Despite promises to provide additional dates for Defendant’s deposition, none were provided by defense counsel. Motion, Shaffer Decl., ¶ 9. On October 29, 2013, Plaintiff’s counsel sent a meet and confer letter to defense counsel regarding the scheduling of Defendant’s deposition. Motion, Shaffer Decl., ¶ 9 and Exh. 5. Thereafter, Plaintiff noticed Defendant’s deposition four more times only to have the depositions cancelled by defense counsel two days before the scheduled dates. Motion, Shaffer Decl., ¶¶ 9-16 and Exhs. 4-12. Following the last cancellation on May 1, 2014, the instant motion was filed.

The meet and confer requirement is satisfied. Plaintiff’s counsel made numerous attempts to resolve this discovery dispute prior to filing the instant motion. Motion, Shaffer Decl., ¶¶ 9, 12, 15 and Exhs. 5, 9, 15. Although the opposition papers state that Defendant has since provided Plaintiff with dates on which she is available for her deposition, this is not corroborated either by Defendant’s declaration or that of her attorney. See Oppo., Adams Decl. and Demarest Decl. Nor is there any indication that Defendant cannot sit for her deposition on the date requested by Plaintiff in his motion.

Accordingly, this Court GRANTS Plaintiff’s request to set Defendant’s deposition for September 4, 2014 at 10:00 am at the Law Offices of J. Shaffer Smith & Associates, 8383 Wilshire Blvd., Suite 660, Beverly Hills, California. See Notice of Motion, p. 2:1-3.

III. SANCTIONS

Sanctions must be awarded to a party who successfully brings a motion to compel deposition. However, the Court may decline to impose sanctions if “one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” See CCP § 2025.450(g)(1). Defendant opposes the request for sanctions based on her severe depression, stress, anxiety, gestational diabetes, sleep deprivation and high blood pressure, which began in late 2012 and began to improve in June 2014. Oppo., Adams Decl., ¶¶ 8-24. Defendant also states that her financial condition is dire. Oppo., Adams Decl., ¶¶ 27-30. Finally, it appears that defense counsel was not aware of the nature and severity of Defendant’s condition over the past two years, as she repeatedly failed to communicate with them. Oppo., Adams Decl., ¶ 5; Demarest Decl., ¶ 5. Defense counsel tried to get Defendant to prepare for, an attend her deposition. Oppo., Demarest Decl., ¶ 6.

Although Plaintiff argues that the opposition is not supported by a physician’s declaration, there is nothing in the papers to indicate Defendant is not being honest in opposing the request for sanctions. However, while a medical illness could support Defendant’s position that she was unable to attend her deposition, in this case Defendant failed to communicate with her attorney as to her illness, instead either failing to communicate with her attorney at all or failing to inform her attorney that she could not attend because of her illness. Had Defendant informed her attorney that she could not attend her deposition because of a debilitating medical condition, her attorney could have communicated this to Plaintiff’s counsel to avoid the need to notice the deposition six times, and to cancel at the last minute. Accordingly, sanctions are warranted in this case. While the Court is mindful of the “dire” financial condition Defendant states she is in, it would not be fair for Plaintiff to bear the cost of rescheduling the depositions in light of the facts in this case.

However, because defense counsel did not know why his client was unable to attend the deposition on the proposed dates, the Court will only award sanctions against Defendant.

The Court orders $1,299.70 in sanctions against Defendant, which includes $750.00 in attorneys’ fees, $239.70 to cover the court reporter’s fee, and $60 for the motion fee. The Court notes that while Plaintiff’s counsel believes his hourly rate would be $750 per hour, there is no showing as to why an attorney with less experience could not prepare letters and negotiate with defense counsel regarding the rescheduling of the depositions. Accordingly, the Court is awarding sanctions assuming four hours spent at $250 per hour.

IV. CONCLUSION

Plaintiff Hamid Torkamanha’s Motion to Compel Deposition Testimony of Defendant Katrina Adams is GRANTED. Defendant is ordered to appear for her deposition on September 4, 2014 at 10:00 am at the Law Offices of J. Shaffer Smith & Associates, 8383 Wilshire Blvd., Suite 660, Beverly Hills, California. The request for sanctions is GRANTED in the amount of $1,299.70 against Defendant. Sanctions to be paid to Plaintiff’s counsel within 30 days of service of this Order.

Plaintiff is ordered to give notice.

Dated: August 12, 2014

____________________________
Hon. Gail Ruderman Feuer
Judge, Los Angeles Superior Court