Case Number: BC712734 Hearing Date: January 30, 2019 Dept: 5
Superior Court of California
County of Los Angeles
Department 5
amado sosa,
Plaintiff,
v.
marilynn wilkerson,
Defendant.
Case No.: BC712734
Hearing Date: January 28, 2019
[TENTATIVE] order RE:
PLAINTIFF’s motion for order compelling Defendant’s DEPOSITIONs
BACKGROUND
Plaintiff Amado Sosa (“Plaintiff”) alleges she sustained injuries in a motor vehicle collision with Defendant Marilynn Wilkerson (“Defendant”). Plaintiff moves to compel Defendant to appear for deposition. The motion is denied.
LEGAL STANDARD
Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent to attend and testify at deposition. (Code Civ. Proc., §2025.450, subd. (a).)
DISCUSSION
Plaintiff has the right to take Defendant’s deposition and is entitled to take Defendant’s depositions without leave of the Court at any time after Plaintiff served Defendant, or after Defendant appeared in the action. (See Code Civ. Proc., § 2025.210, subd. (a).)
In this case, after the parties conferred about suitable dates for Defendant’s deposition, Plaintiff noticed Defendant’s deposition for October 12, 2018. Defendant did not appear on that date as agreed. However, the Court denies the motion to compel Defendant’s deposition as procedurally defective. Because Defendant did not appear for deposition, Plaintiff should have filed “a declaration stating that [Plaintiff] has contacted [Defendant] to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).) While Plaintiff has advanced a declaration of her counsel, that declaration does not reflect any efforts to contact Defendant after Defendant’s failure to appear.
The Court also notes that Defendant has shown good cause for missing the deposition. The reason Defendant failed to appear for deposition that date is that Defendant’s counsel, Gabriel S. Poll (“Counsel”), was lightheaded and dizzy to such an extent that he sought treatment in the emergency room. (See Declaration of Gabriel S. Poll, ¶¶ 2, 3.) Counsel’s associate contacted Plaintiff’s counsel’s office by 11:30 AM, two hours before the scheduled start of the deposition, and stated that the deposition could not go forward due to Counsel’s illness. (Declaration of Suzanna R. Harman, ¶ 3.) The Court concludes that Defendant did not fail to appear in order to evade discovery, but due to the sudden unavailability of Counsel. The Court further notes that Plaintiff could have mitigated the costs associated with Defendant’s failure to appear by cancelling the court reporter, but failed to do so.
Plaintiff has requested $4,360 in sanctions associated with this motion. The Court declines to order sanctions, not only because it is denying the motion, but also because Plaintiff’s counsel has acted unreasonably in filing the motion. Defense counsel’s visit to the emergency room and related health issues takes priority over a deposition. Defendant did not request sanctions so the Court orders none against Plaintiff.
CONCLUSION AND ORDER
Plaintiff’s motion to compel is denied. The Court orders as follows:
1. The parties shall meet-and-confer concerning Defendant’s deposition within ten (10) days of notice of this order.
2. The deposition of Defendant shall occur within sixty (60) days of notice of this order.
Defendant is ordered to provide notice and file proof of such with the Court.
DATED: January 30, 2019 ___________________________
Stephen I. Goorvitch
Judge of the Superior Court