Case Number: BC678844 Hearing Date: January 08, 2019 Dept: 4A

Motion to Compel Plaintiff’s Deposition and Request for Monetary and/or Terminating Sanctions[1]

The Court considered the motion, untimely opposition[2], and reply papers.

Plaintiff Marissa Lara-Ojeda (“Plaintiff”) filed a Complaint on October 10, 2017. Plaintiff’s First Amended Complaint, filed February 21, 2018, asserts causes of action against Defendants Kenny Tran, Wal-Mart Stores, Inc. (erroneously sued as Walmart, Inc.) (“Wal-Mart”) and Does 1-25 for negligence and premises liability based on an alleged slip and fall occurring on or about November 4, 2015. (FAC, ¶ 8.)

Wal-Mart moves the court for an order, per CCP §§ 2025.450 and 2023.030(a), compelling Plaintiff’s deposition and requests monetary sanctions of $981.00 and/or terminating sanctions.

“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” CCP § 2025.280(a).

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” CCP § 2025.450(a).

“A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance…” CCP § 2025.450(b).

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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).

On March 13, 2018, Wal-Mart noticed Plaintiff’s deposition for April 16, 2018. (Ohiri Decl., ¶3, Exh. A.). Plaintiff thereafter proposed alternative dates for the deposition, such that on April 16, 2018, Wal-Mart served an amended notice, setting Plaintiff’s deposition for June 12, 2018, a date proposed by Plaintiff. (Id. at ¶4, Exh. B.) Plaintiff thereafter telephonically cancelled the June 12, 2018 deposition and proposed further new dates for the deposition. (Id. at ¶5.) On September 21, 2018, Wal-Mart served a second amended notice of Plaintiff’s deposition for November 16, 2018, a date proposed by Plaintiff. (Id. at ¶6, Exh. C.) On November 15, 2018, Wal-Mart’s counsel’s office contacted Plaintiff’s counsel to confirm the November 16, 2018 deposition and at that time learned that Plaintiff would be unable to attend same. (Id. at ¶7.) Plaintiff’s counsel proposed that the deposition be re-scheduled to November 19, 2018. (Ibid.) On November 15, 2018, Wal-Mart served a third amended notice of Plaintiff’s deposition for November 19, 2018. (Id. at ¶8, Exh. D.) On November 19, 2018, at approximately 9:33 a.m., Plaintiff’s counsel’s office contacted Wal-Mart’s counsel’s office to inform Wal-Mart’s counsel that Plaintiff would not be appearing for her deposition scheduled for 10:00 a.m. that day. (Id. at ¶10.) On November 19, 2018, Plaintiff failed to appear for her deposition and a certificate of non-appearance was taken. (Id. at ¶ 11, Exh. F.)

Plaintiff, in opposition, contends that the motion is unnecessary. Plaintiff represents that she did not appear at her scheduled deposition on November 19, 2018 because she was ordered by her doctor to undergo an MRI at the last minute. Plaintiff further represents that she has agreed to appear for her deposition on January 17, 2019.

Although Plaintiff has agreed to submit to deposition on January 17, 2019, the court nevertheless grants the motion, in light of Wal-Mart’s repeated unsuccessful attempts to procure Plaintiff’s deposition. Plaintiff is ordered to appear for deposition the office of defense counsel within ten (10) days. Sanctions are warranted pursuant to Code of Civil Procedure, section 2023.030, subdivision (d) and section 2025.450, subdivision (g)(1,) and have been properly noticed. Wal-Mart is awarded sanctions in the amount of $981.00, comprised of $760.00 in attorney’s fees and costs and $221.00 in court reporter fees. (Ohiri Decl., ¶¶12-16.)

[1] Although Wal-Mart purports to seek “terminating sanctions” in the motion caption and notice of motion, its memorandum of points and authorities does not provide any argument in this regard. The court considers Wal-Mart’s request for terminating sanctions abandoned.

[2] The opposition, due December 24, 2018, was filed on December 26, 2018.