KAYLA LYONS VS TOMMER BENHAM ET AL

Motion to Compel Deposition of Defendant/Cross-Defendant Jeremy Scott Bell

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On November 11, 2017, Plaintiff Kayla Lyons filed a complaint against Defendants Tommer Benham, Asher Haim, and Jeremy Scott Bell. The complaint alleges negligence arising out of a vehicle-motorcycle accident that occurred on May 20, 2017. 

On January 2, 2018, Defendants Tommer Benham and Asher Haim (“Cross-Complainants”) filed a cross-complaint against Defendant Jeremy Scott Bell (“Cross-Defendant”).

On January 31, 2020, Cross-Complainants filed a motion to compel Cross-Defendant to deposition.

On February 18, 2020, Cross-Defendant filed an opposition.

Trial is set for April 10, 2020.

PARTY’S REQUESTS

Cross-Complainants ask the Court to compel Cross-Defendant to deposition for failure to appear at noticed depositions.

Cross-Complainants also ask the Court to impose $3,100 in monetary sanctions against Cross-Defendant for his abuse of the discovery process.

LEGAL STANDARD

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process.  (Code of Civ. Proc. ; 2023.010, subd. (d).)

DISCUSSION

On March 27, 2019, Cross-Complainants served a second amended notice of taking the deposition of Cross-Defendant. (Chang Decl., ¶ 10; Exh. G.) It was noticed for May 1, 2019. (Id.) Cross-Defendant did not serve an objection to the deposition notice. (Chang Decl., ¶ 11.) Cross-Defendant failed to appear on the scheduled deposition date and a Certificate of Non-Appearance was taken. (Chang Decl., ¶ 12; Exh. H.) Counsels for the parties corresponded regarding the non-appearance. It was disclosed that Cross-Defendant was incarcerated during said deposition date. 

On August 22, 2019, counsel for Cross-Complainants was informed that Cross-Defendant was released from jail on July 23, 2019. (Chang Decl., ¶ 15.) On August 27, 2019, Cross-Complainants served a third amended notice of taking the deposition of Cross-Defendant. (Chang Decl., ¶ 16.) It was noticed for September 17, 2019. (Id.) The deposition was subsequently vacated. (Id.)

On December 10, 2019, Cross-Complainants served a fourth amended notice of taking the deposition of Cross-Defendant. (Chang Decl., ¶ 19; Exh. L.) At the agreement of all parties, the deposition was noticed for December 13, 2019. (Id.) Cross-Defendant again failed to appear, and a Certificate of Non-Appearance was taken. (Chang Decl., ¶ 20; Exh. M.) To date, Cross-Defendant’s deposition has not been taken. (Chang Decl., ¶ 23.) 

In opposition, Cross-Defendant’s counsel argues: (1) until recently, they were unable to contact Cross-Defendant; (2) Cross-Defendant is vagrant and has difficulties with competency; (3) they have fully cooperated with discovery to the extent possible given the circumstances; (4) compelling deposition would constitute undue burden and expenses; and (5) the instant motion was made without substantial justification, and Cross-Defendant’s counsel is entitled to $1,500 in attorney’s fees.

The Court finds the motion is properly granted. Cross-Complainants properly served deposition notices to Cross-Defendant. Cross-Defendant twice failed to appear.

Both parties requests for sanctions are denied, however, as the Court is not convinced the Cross-Defendant's failures have been willful.    

CONCLUSION

The motion is GRANTED.

Cross-Defendant is ordered to appear at a deposition within 20 days of this ruling on a date mutually agreeable with Cross-Complainants.

Cross-Complainants are ordered to give notice of this ruling.