Case Number: BC690755 Hearing Date: November 28, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO COMPEL PLAINTIFF’S DEPOSITION, RESPONSES TO DISCOVERY, AND MONETARY SANCTIONS; MOTIONS GRANTED

On January 18, 2018, Plaintiff Victor Argon Soto (“Plaintiff”) filed this action against Defendants Israel Jesus Amaro and Mariana Amaro (collectively, “Defendants”) for negligence and negligence – permissive user relating to a May 28, 2016 automobile collision. Defendants move to compel responses to discovery, Plaintiff’s deposition, and monetary sanctions.

Responses to Discovery

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code of 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 of 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 February 20, 2018, Defendants served Form Interrogatories, Special Interrogatories, and Requests for Production of Documents on Plaintiff. (Declaration of Mary Margaryan, ¶ 3.) Plaintiff’s counsel was relieved as counsel on July 20, 2018. (Margaryan Decl., ¶ 7.) On August 2, 2018, Defendants re-served discovery requests on Plaintiff via certified mail return receipt. (Margaryan Decl., ¶ 8.) Defense counsel’s secretary spoke with Plaintiff regarding his deposition and outstanding discovery responses. Plaintiff stated he was unaware of any accident or a lawsuit filed on his behalf and hung up. (Margaryan Decl., ¶ 10.) To date, Plaintiff has not served responses to discovery. (Margaryan Decl., ¶ 11.)

Plaintiff filed no opposition to these Motions and it is undisputed that he failed to serve timely responses to discovery. Accordingly, the Motions to compel are GRANTED and Plaintiff is ordered to serve verified responses, without objection, to Defendants’ Form Interrogatories, Special Interrogatories, and Requests for Production of Documents within twenty (20) days of the date of this Order.

Plaintiff’s Deposition

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).)

On August 2, 2018, Defendants served a Notice of Taking Deposition on Plaintiff setting his deposition for August 24, 2018. The return receipt shows Plaintiff received the Notice on August 4. (Declaration of Mary Margaryan Decl., ¶ 3; Exh. K.) Defense counsel’s secretary attempted to confirm the deposition with Plaintiff via telephone. However, Plaintiff failed to appear at the deposition and an Affidavit of Non-Appearance was taken. (Margaryan Decl., ¶¶ 4, 5.)

Plaintiff filed no opposition to this Motion and it is undisputed he failed to appear for his properly-noticed deposition. The Motion to compel Plaintiff’s appearance at deposition is GRANTED and Plaintiff is ordered to appear within twenty (20) days, 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 of Civ. Proc., § 2030.290, 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 of Civ. Proc., § 2025.450, subd. (g)(1).)

Monetary sanctions are GRANTED and imposed against Plaintiff in the reduced amount of $817.00 for two hours at defense counsel’s hourly rate of $175.00, the $287.00 for the Spanish translator at the August 24 deposition, and $180.00 for filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.