Case Number: BC666092 Hearing Date: December 27, 2018 Dept: 7

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

On June 23, 2017, Plaintiff Natalie Page (“Plaintiff”) filed this action against Defendant Brittany Barnes (erroneously sued as Jane Doe and Brittany A. Mranik) (“Defendant”) for motor vehicle negligence relating to an April 6, 2017 automobile accident.

On August 3, 2018, Plaintiff served a deposition notice on Defendant setting her deposition on August 28, 2018. Plaintiff’s counsel sent emails to defense counsel on August 27 and August 28, but defense counsel failed to respond and Defendant failed to appear for her deposition. (Declaration of Lindsay Burton, ¶ 5; Exh. 1.) On August 29, 2018, Plaintiff served a second deposition notice setting Defendant’s deposition for September 14, 2018. Plaintiff’s counsel contacted defense counsel to agree on a date for deposition, but received no response, and Defendant failed to appear for her deposition. (Burton Decl., ¶ 6; Exh. 2.) Plaintiff’s counsel sent another deposition notice setting Defendant’s deposition for October 3, 2018. Defendant failed to appear or respond. (Burton Decl., ¶ 7; Exh. 3.) Plaintiff moves to compel Defendant’s deposition and monetary sanctions.

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

“If, after service of a deposition notice, a party . . . 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 of 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 of Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)

Defendant argues that she served timely objections on August 20, 2018, on September 11, 2018, and on September 25, 2018, to each of Plaintiff’s deposition notices on grounds they had been unilaterally set and Defendant was not available on those dates. (Declaration of Leah A. Reeves, ¶ 3; Exh. A.)

On October 15, 2018, Plaintiff filed this Motion to compel Defendant’s deposition. On October 18, 2018, Plaintiff moved ex parte to compel Defendant’s deposition, which was denied. The parties then agreed on November 9, 2018 for Defendant’s deposition. Defense counsel advised that if the November 9, 2018 deposition did not go forward, Defendant would not be available again until after the first of the year, as she would be out of the country. (Reeves Decl., ¶ 4.) Declaration of Brittany Barnes, ¶¶ 2-5.)

Plaintiff then took the November 9, 2018 deposition off calendar. Plaintiff states the deposition was taken off calendar because she became engaged in trial in Long Beach and because Defendant has not yet responded to written discovery. (Burton Reply Decl., ¶ 3.) The Court is unconvinced by this argument, as Defendant’s deposition was previously noticed for dates in August through October, which were also presumably before Defendant had responded to any discovery.

Plaintiff’s counsel states she offered to take this motion off calendar and to depose Defendant on January 11, 2019, if Defendant provided proof that she would be out of the country. Defendant states it was actually her husband who was out of the country until January 2019. However, she is unavailable until January 1, 2019 and will be available that Friday for deposition. (Barnes Decl., ¶ 5.)

After reviewing the moving, opposition, and reply papers, the Motion to compel Defendant’s deposition is GRANTED and Defendant is ordered to appear for her deposition by January 15, 2019, or other date to which the parties agree.

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).)

Defense counsel states Plaintiff’s attempts at informal resolution were not reasonable. However, it appears undisputed that defense counsel never responded to Plaintiff’s counsel’s August and September attempts to meet and confer on a mutually agreeable date for Defendant’s deposition. Further, Plaintiff repeatedly noticed Defendant’s deposition and although Defendant served an objection to each deposition notice, she provided no alternative dates on which she could appear.

Plaintiff’s request for monetary sanctions is GRANTED and imposed against Defendant and defense counsel, jointly and severally, in the reduced amount of $1,410.00 for three hours at Plaintiff’s counsel’s hourly rate of $450.00 and the $60.00 filing fee, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.