Case Number: EC061985 Hearing Date: June 06, 2014 Dept: B

Motion for:
1. Order compelling the Defendant to appear for his deposition.
2. Order imposing monetary sanctions of $2,282.60 on the Defendant.

This case arises from the Plaintiff’s claim that the Defendant breached a motor vehicle lease agreement when he failed to return a 2007 Mercedes-Benz S550 at the end of the lease.

At this hearing, the Plaintiff seeks an order compelling the Defendant to appear for his deposition. The Plaintiff’s attorney, Rebecca Caley, states facts demonstrating that the Plaintiff served the notice of deposition for the Defendant on February 27, 2014. Ms. Caley states that the Defendant did not appear at the deposition as scheduled on April 7, 2014.

This dispute has arisen because the Defendant claims that he is not the correct Defendant and that he never leased a Mercedes-Benz. However, the Plaintiff’s counsel, Ms. Caley, is aware of this and she states that her client has no interest in pursuing the wrong person. Ms. Caley states that she attempted to investigate the Defendant’s claim by requesting that the Defendant appear at her office with his social security card and driver’s license so that she could compare them to the information in the lease agreement. The Defendant, however, declined to appear, has filed an answer, and has retained counsel.

The Defendant filed opposition papers to argue that this is a “clear” case of mistaken identity. However, a discovery motion is not the place for the Defendant to establish his defenses. Instead, the Defendant must comply with discovery. If the Defendant fails to comply with discovery, then terminating sanctions may be imposed on the Defendant that would result in him being liable under a default judgment.

The Defendant also states that he has agreed to appear for his deposition. However, the opposition papers contain no evidence establishing that the parties have agreed to a new date for the Defendant’s deposition.
Under CCP section 2025.450, the Court may order a party to appear for a deposition when the party has failed to appear for or to proceed with a properly noticed deposition. A copy of the notice of deposition is attached as exhibit 2 to the moving papers. Since the Defendant did not appear for his noticed deposition, the Court orders the Defendant under CCP section 2025.450 to appear for his deposition.

The Plaintiff request that the Court impose monetary sanctions of $2,282.60. Under CCP section 2025.450, the Court may impose reasonable monetary sanctions on the Defendant and his attorney for the failure to comply with discovery. Monetary sanctions are appropriate because the Defendant’s failure to comply with discovery has caused the Plaintiff to incur attorney’s fees and costs.

In his opposition, the Defendant argues that he did not understand the significance of the notice of deposition until he obtained counsel. This does not demonstrate that the Defendant was acting with substantial justification because, as a pro per, he has a duty to be familiar with the legal procedures of the Court.

Further, a reasonable prudent person would not ignore a notice of deposition. The Plaintiff’s attorney, Rebecca Caley, states that the Defendant never served an objection and never contacted her to request a continuance or to advise her that he would not appear. Since the Defendant ignored the notice of deposition and caused the Plaintiff to incur attorney’s fees and costs as a result of the Defendant’s failure to comply with discovery, it is reasonable to order the Defendant to bear the burden for these fees and costs by imposing monetary sanctions on the Defendant.

The Plaintiff’s attorney, Rebecca Caley, provides facts in paragraph 21 of her declaration to account for the $2,282.60 amount in the following manner:

1) $2,000 for 8.9 hours billed at $185 per hour for attorney services and $100 per hour for paralegal billing; and
2) $282.60 for the Court reporter fees incurred as a result of the Defendant’s non-appearance.

The amount requested is a reasonable amount of monetary sanctions to impose on the Defendant for failing to comply with discovery. Accordingly, Defendant shall pay sanctions in the amount of $22 82.60 to Plaintiff’s counsel within 30 days from today’s date. Defendant is ordered to appear for deposition. If no date for the deposition is agreed upon before the hearing on this matter, the Court will set a date by Court Order.