Case Number: BC562700??? Hearing Date: May 27, 2016??? Dept: 78
Superior Court of California
County of Los Angeles
Department 78
FREDERICK C. JOHNSON;
Plaintiff,
vs.
PHILLIPS & RICKARDS, et al.;
Defendants. Case No.: BC562700
Hearing Date: May 27, 2016
[TENTATIVE] RULING RE:DEFENDANTS PHILLIPS & RICKARDS AND WENDELL PHILLIPS? MOTION TO COMPEL PLAINTIFF?S ATTENDANCE AT DEPOSITION AND PRODUCTION OF DOCUMENTS RELATED THERETO.
Defendants Phillips & Rickards and Wendell Phillips? Motion to Compel Deposition and Production of Documents is GRANTED. Johnson is to appear at his deposition at the noticed location within ten days of this order, on a date and location to be set by Phillips and Rickards, and to produce the requested documents.
The court GRANTS sanctions in the total amount of $1807.73, representing 5 hours to prepare the motion at $300 per hour and $307.73 in costs. Johnson is to pay the sanctions amount within twenty days of this order, payable to Phillips & Rickards.
FACTUAL BACKGROUND
This is a legal malpractice claims. Plaintiff Frederick C. Johnson (?Johnson?) alleges that defendants Phillips & Rickards (?PR?) and Wendell Phillips (?Phillips?) agreed to provide legal services relating to Johnson?s termination from his job as a cook with the California Department of Corrections. (Complaint ? 9.) The Complaint alleges that PR and Phillips were negligent in failing to present evidence, failing to advise Johnson regarding the deadline to sue for wrongful termination, and failing to preserve his right to appeal. (Complaint ? 11.)
PROCEDURAL HISTORY
Johnson filed his Complaint on November 3, 2014, which alleges a single cause of action for negligence. PR and Phillips filed their Answer on February 19, 2015.
PRE-FILING HISTORY
On February 23, 2016, defendants Phillips & Rickards and Wendell Phillips (collectively, ?Phillips?) served Johnson with a notice of deposition in Gorman, California, which contained a Request for Production of Documents, and setting the deposition for March 5, 2016. (Rickards Decl. ? 3.) On February 25, 2016, Johnson sent an e-mail to Phillips stating that he would not be attending the deposition, citing his fear of physical injury. (Id. ? 4.) Specifically, Johnson states that Johnson has a ?fear for [his] safety and well ?being in meeting you (Phillips & Rickards), ANYWHERE without Orders from the Court.? (Ex. C to Rickards Decl.) Further, Johnson states his fear that meeting with Phillips Rickards would cause him to ?be subjected to a set-up for an unsuspected bodily harm injury or death.? (Ibid.)
On February 26, 2016, attorney G. Bryan Brannan (?Brannan?) associated as counsel for Phillips, and delivered a copy of his Notice of Association of Counsel. (Brannan Decl. ? 4.) Brannon explained to Johnson his duty to appear at the deposition. (Id. ? 5.) Johnson responded only that he would address the deposition with co-counsel Rickards. (Id. ? 6.)
On March 1, 2016, Rickards sent an email to Johnson asking if he intended to appear at the deposition. (Rickards Decl. ? 6.) On March 4, 2016, Johnson stated that he would not be available for deposition until March 8, 2016. (Id. ? 7.) According to attorney Richards, at the mandatory settlement conference on March 8, 2016 with Judge Elizabeth White, the parties agreed that Johnson would be deposed in Bakersfield on March 19, 2016, and Johnson agreed to bring documents with him. (Id. ? 8.)
Phillips sent a letter confirming the deposition to Johnson on March 9, 2016, and Johnson responded that he was ?discussing my options with my family and others and will give you a response within a day or two.? (Rickards Decl. ?? 9, 10.) On March 10, 2016, Phillips sent an electronic courtesy copy of the Amended Notice of Deposition, and a Notice of the Post-Mediation Status Conference scheduled for April 6, 2016. (Id. ? 11.) On March 14, 2016, Phillips received an email from Johnson stating that he would not appear at the deposition. (Id. ? 13.) In this email, Johnson states that he ?will not be able to concur with meeting with you to participate in a deposition and that I respectfully request to re-schedule the deposition at a later confirmed date.? (Ex. L to Rickards Decl.) Johnson also states in his email that in order for him to have a ?thorough deposition,? he needs his complete client file. (Ibid.)
On March 15, 2016, Phillips emailed Johnson advising him that his deposition was not noticed for March 26, 2016. (Id. ? 14.) An amended notice of deposition was served on March 15, 2016. (Id. ? 15.) On March 18, 2016, Johnson stated that he would not be appearing at the deposition and would seek a continuance of the deposition. (Id. ? 16.)
On March 22, 2016, Phillips sent a text to Johnson stating that in order to have the deposition continued he needed to take ?several procedural steps.? (Rickards Decl. ? 19, Ex. R to Rickards Decl.) Then, on March 24, 2016, Rickards notified Johnson by text reminding him that he had not obtained a continuance from the court of the deposition, and therefore needed to appear at his deposition on Saturday, March 26, 2016. (Rickards Decl. ? 20) On March 24, 2016, Johnson responded by email that he would not appear at his deposition on March 26, and that he would not meet with Rickards (presumably for his deposition) until he had his entire client file, that he was seeking a lawyer, and that March 26 was not convenient because he had another obligation and the Friday before the deposition was Good Friday. (Id. ? 21; Ex. S to Rickards Decl.) On March 24, 2016, Phillips responded by email that Johnson had not obtained a court order continuing the deposition, and that the deposition would go forward as noticed. (Id. ? 22; Ex. T to Rickards Decl.)
The deposition went forward on March 26, 2016, in Gorman, California, and Johnson did not appear. (Rickard Decl. ? 23.) Phillips filed its Motion to Compel Deposition on May 5, 2016. No Opposition has been filed.
DISCUSSION
I. MOTION TO COMPEL ? DEPOSITION
?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, electronically stored information, 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, electronically stored information, or tangible thing described in the deposition notice.? (Code Civ. Proc., ? 2025.450, subd. (a).) A Motion to Compel Attendance must be accompanied by a meet and confer declaration or, ?when the deponent fails to attend the deposition . . . a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.? (Code Civ. Proc., ? 2025.250, subd. (b)(2).)
As an initial matter, the court finds that Phillips properly met and conferred on the issue of this deposition prior to filing the motion. Although the declarations do no show that Phillips contacted Johnson after his failure to appear, in light of the extensive correspondence between the parties described above, the court finds that additional attempts to meet and confer would have been futile. Johnson made clear in his communications that he did not intend to appear at his deposition given various excuses of fear for his safety, lack of an attorney, and lack of his client file.
Further, it is not in dispute that Phillips properly noticed Johnson?s deposition, and that Johnson failed to appear at his March 26, 2016 deposition in Gorman, California. Johnson has failed to file an opposition to the motion outlining his position, although the court assumes that Johnson refused to appear at his deposition based on the same reasons given in his emails. However, a party is required to appear at a properly notice deposition unless he or she obtains a protective order to prevent the deposition from going forward.
Code of Civil Procedure Section 2025.420, subd. (a) provides: ?Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.? A motion for a protective order may be granted ?for good cause shown,? and the court ?may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.? (Code Civ. Proc., ? 2025.420, subd. (b).) The court may make an order that the deposition not be taken at all, or that the deposition be taken at a different time. (Ibid.)
Johnson has not filed a motion for a protective order to prevent the taking of his deposition, to reschedule his deposition, or to set any restrictions on the taking of his deposition. Accordingly, he was obligated to appear at his deposition. Further, with respect to his assertion that he will not appear for his deposition until Phillips produces his entire client file, the court on May 4, 2016 denied Johnson?s Motion to Compel Production, in which he sought his client files. The court held:
However, it appears that PR produced Johnson?s file in response to his September 17, 2015 Request for Production of Documents on October 21, 2015. (Rickards Decl. ? 4, Ex. 2.) Even if Johnson did not receive the actual file at the same time the responses were filed, PR emailed the file to him on November 24, 2015. Regardless, PR did in fact serve responses to the September 17, 2015 RFPs before this motion was filed. Accordingly, the Motion to Compel is DENIED.
The court GRANTS the Motion to Compel Deposition and Production of Documents. Johnson is to appear at his deposition at the noticed location within ten days of this order, on a date and location to be set by Phillips, and to produce the requested documents.
II. SANCTIONS
?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.? (Code Civ. Proc., ? 2025.450, subd. (g)(1).)
Brannan states that he spent 6.5 hours preparing this motion and anticipates spending 3.5 hours at the hearing on this motion, at a rate of $495 per hour. (Brannan Decl. ? 19.) The court finds that both the time estimate and the hourly rate are unreasonably high. This is a straight-forward two and a half page motion that does not require 6.5 hour of attorney time to complete, nor does it require an attorney billing at $495 per hour.
Phillips incurred costs related to the deposition totaling $307.73. (See Brannan Decl. ? 19; Rickards Decl. ?? 25?27.) The court therefore GRANTS sanctions in the total amount of $1807.73, representing 5 hours to prepare the motion and appear at the hearing at $300 per hour and the $307.73 in costs.
Defendants to give notice.
DATED: May 27, 2016
________________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court