Case Number: BC722751 Hearing Date: June 26, 2019 Dept: 4A
Motion to Compel Deposition and Production of Documents
Having considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On September 24, 2018, Plaintiff Matthew Lee (“Plaintiff”) filed a complaint against Defendant Edward Weilbacher (“Defendant”) alleging motor vehicle and general negligence for a vehicle collision that occurred on October 4, 2016.
On April 15, 2019, Plaintiff filed a motion to compel Defendant’s appearance at a deposition and Defendant’s responses to a request for production of documents.
Trial is set for March 9, 2019.
PARTIES’ REQUESTS
Plaintiff asks the Court for an order compelling Defendant to appear and testify at a deposition and produce documents specified in Plaintiff’s deposition notice within ten days of the hearing on this motion.
Plaintiff also requests that the Court order payment of $4,135.55 in monetary sanctions by Defendant and/or Defendant’s counsel of record for their abuse of the discovery process.
Defendant requests the Court for an award of $4,135.55 in monetary sanctions against Plaintiff and his counsel of record for bringing a frivolous motion.
LEGAL STANDARD
California Code of Civil Procedure section 2025.450, subdivision (a) provides:¿ “If, after service of a deposition notice, a party to the action¿. . .¿, 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¿. . .¿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¿. . . described in the deposition notice.”¿¿
California Code of Civil Procedure section 2025.450, subdivision (b) states, “A motion under subdivision (a) shall comply with both of the following:
The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. . .
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, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”
A court may grant sanctions against a party who brings a motion unsuccessfully without substantial justification as such a motion is an abuse of the discovery process. (Code Civ. Proc. §§ 2023.010, subd. (h), 2023.030, subd. (a).)
DISCUSSION
The Court initially notes that Plaintiff filed a satisfactory meet and confer declaration detailing Plaintiff’s efforts to resolve the issues in this motion with Defendant without Court intervention. (Berkley Decl., ¶ 16, Exh. 9.)
On February 15, 2019, Plaintiff served on Defendant a notice of taking Defendant’s deposition and request for production of documents and set the deposition for March 26, 2019. (Berkley Decl., ¶ 10, Exh. 6.) On March 26, 2019, Defendant failed to appear at the deposition and Plaintiff took a Certificate of Non-Appearance. (Berkley Decl., ¶ 14, Exh. 7.)
Defendant argues that, despite proper service of the February 15, 2019 deposition notice, Defendant’s counsel did not receive the notice in the mail. (Opposition, p. 4:13-4:14.) Defendant also argues that Plaintiff’s follow-up phone calls did not reach the correct person until March 25, 2019, when Defendant’s counsel informed Plaintiff that the deposition would have to be rescheduled. (Opposition, p. 4:14-4:17.) Defendant contends that his counsel “tried to reschedule” but has provided no evidence of such an effort. (Id., p. 5:21).
The Court finds Defendant’s purported objection to the deposition notice to be both unmeritorious and untimely. Defendant has submitted no evidence indicating that Defendant did not receive notice of the March 26, 2019 deposition, nor any evidence that he tried to reschedule the deposition after cancelling it on March 25, 2019. Further, Defendant’s contention that Plaintiff failed to meet and confer is without support.
Plaintiff requests $4,135.55 in monetary sanctions against Defendant and/or Defendant’s counsel of record. (Berkley Decl., ¶ 21.) This consists of one hour meeting and conferring, a half hour for a notice of first continuance of deposition, a half hour for a notice of second continuance of deposition, three hours for the motion, one and a half hour for reviewing Plaintiff’s opposition, an hour for drafting the reply and three hours for appearing at the hearing for this motion, plus one $61.65 filing fee and one $398.90 Certificate of Non-Appearance. (Berkley Decl., ¶¶ 15, 18, 20.) Plaintiff’s counsel’s hourly rate is $350.00 an hour. Berkley Decl., ¶ 19.)
Plaintiff’s requested sanctions amount is unreasonable. Rather, the Court finds $1,660.55 ($300/hr. X 4 hrs. plus one $61.65 filing fee plus one $398.90 Certificate of Non-Appearance) to be a reasonable amount of monetary sanctions for bringing this motion.
Therefore, Plaintiff’s motion is GRANTED.
Defendant’s request for sanctions is DENIED.
The Court orders Defendant to appear at and testify at a deposition and produce documents pursuant to the February 15, 2019 deposition notice within 30 days of this order.
The Court also orders Defendant and Defendant’s counsel of record to pay Plaintiff $1,660.55, jointly and severally, within 30 days of this order.
Plaintiff is ordered to give notice.