Case Number: BC655676 Hearing Date: December 27, 2018 Dept: 47
Daniels, Fine, Israel, Schonbuch & Lebovits, LLP v. Larry Rabineau, et al.
MOTION TO COMPEL DEPOSITION
MOVING PARTY: Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP
RESPONDING PARTY(S): No opposition filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff alleges it agreed with Defendants to share the costs of litigation regarding representation of a client in a personal injury lawsuit. Defendants have allegedly failed to pay their share of costs as agreed.
Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP moves to compel the deposition of Virginia Narian.
TENTATIVE RULING:
Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP’s motion to compel the deposition of Virginia Narian is GRANTED. Deposition to occur no later than January 10, 2019, on a date, place and time to be unilaterally (yet reasonably) determined by moving party.
DISCUSSION:
Motion To Compel Deposition
Plaintiff moves to compel the deposition of Virginia Narian, an employee of the Rabineau Defendants, who failed to appear for her November 2, 2018 deposition and has refused to respond to Plaintiff’s requests to schedule Defendant’s deposition.
(a) 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.
CCP § 2025.450 provides:
(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 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 or tangible thing described in the deposition notice.
(b) 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 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 or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.
(c)
(1) 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.
. . .
(h) If that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent’s testimony would be taken pursuant to that order.
Here, Plaintiff submitted a sufficient meet and confer declaration. See Declaration of Parham Nikfarjam, ¶¶ 5, 6; Exhs D & E.
Because party-affiliated witness Virginia Narian has failed to appear for her noticed depositions, Plaintiff is entitled to an order compelling Narian’s deposition. [The Court notes that the Notices of Deposition did not specify any documents to be produced, so good cause for such production need not be shown.]
Plaintiff’s motion to compel the deposition of Virginia Narian is GRANTED. Deposition to occur no later than January 10, 2019.
Plaintiff did not formally request sanctions, and as such, none will be awarded.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: December 27, 2018 ___________________________________
Randolph M. Hammock
Judge of the Superior Court