Case Number: BC648077 Hearing Date: January 25, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S RESPONSES TO DISCOVERY, APPEARANCE AT DEPOSITION, AND AN ORDER TO DEEMING ADMITTED REQUESTS FOR ADMISSIONS; GRANTED

On January 25, 2017, Plaintiff Kelly Sam Vu (“Plaintiff”) filed this action against Defendants Tyler James Tracey (“Defendant”) and Mae Joyce Gomillion (collectively, “Defendants”) for motor vehicle and general negligence relating to a May 24, 2015 automobile accident. Defendant moves to compel Plaintiff’s responses to discovery requests, to compel Plaintiff’s appearance at a deposition, for an order deeming admitted requests for admissions, and for monetary sanctions.

Compel Responses

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

On July 16, 2018, Defendant served Form Interrogatories, Special Interrogatories, and Requests for Production of Documents on Plaintiff. (Declaration of Ani Garibyan, ¶ 3.) Defense counsel sent three letters to Plaintiff’s counsel seeking responses to discovery. (Garibyan Decl., ¶¶ 4-6.) To date, Plaintiff has not served responses (Garibyan Decl., ¶ 7), and Plaintiff filed no opposition to these Motions. Accordingly, the Motions to compel Plaintiff’s responses are GRANTED. Plaintiff is ordered to serve verified responses, without objections, to Defendant’s Form Interrogatories, Special Interrogatories, and Requests for Production within twenty (20) days of the date of this Order.

Deem Admitted

The court shall grant a motion to deem admitted requests for admissions, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code of Civ. Proc., § 2033.280, subd. (c).)

On July 16, 2018, Defendant served Requests for Admissions on Plaintiff. (Declaration of Ani Garibyan, ¶ 3.) Defense counsel sent three letters to Plaintiff’s counsel seeking responses to the requests for admissions. (Garibyan Decl., ¶¶ 4-6.) To date, Plaintiff has not served responses (Garibyan Decl., ¶ 7), and Plaintiff filed no opposition to this Motion. Accordingly, the Motion for an order deeming admitted requests for admissions is GRANTED.

Compel Deposition

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).) In addition to serving this written objection, 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).)

On October 4, 2018, Defendant served a Notice of Taking Deposition on Plaintiff setting Plaintiff’s deposition for November 7, 2018. (Garibyan Decl., ¶¶ 3, 4.) On November 6, 2018, Plaintiff’s counsel requested that the deposition be canceled. (Garibyan Decl., ¶ 5.) Defense counsel responded that the deposition would be continued to a mutually convenient date. (Garibyan Decl., ¶ 5.) Having received no proposed date for the continued deposition, defense counsel proceeded with the scheduled deposition. Plaintiff did not appear and a certificate of non-appearance was taken. (Garibyan Decl., ¶ 6.)

Plaintiff filed no opposition to this Motion, and Plaintiff did not serve a valid objection to the deposition notice. Accordingly, the Motion to compel Plaintiff’s appearance at deposition is GRANTED and Plaintiff is ordered to appear within twenty (20) days of the date of this Order, or other date to which the parties agree.

Monetary Sanctions

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c).) Where a party fails to provide a timely response to requests for admission, “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., § 2033.280, subd. (c).)

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 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 Civ. Proc., § 2025.450, subd. (g)(2).)

Monetary sanctions are GRANTED and imposed against Plaintiff and Plaintiff’s counsel, jointly and severally, in the reduced amount of $1,500 for four hours at defense counsel’s hourly rate of $300.00 and $300.00 in filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.