Judge: Alison Mackenzie, Case: 22STCV00253, Date: 2024-12-05 Tentative Ruling

Case Number: 22STCV00253    Hearing Date: December 5, 2024    Dept: 55

22STCV00253

Arriaga v. Honda

Plaintiff’s Motion to Compel Deposition of Defendant’s PMQ

Plaintiff Ruth Arriaga moves for an order compelling the deposition of Defendant Honda’s PMQ, and for sanctions. Defendant opposes the motion.

LEGAL STANDARD

Section 2025.450(a) provides that after service of a deposition notice, if a party fails to appear without service of a valid objection, the party giving the notice may move for an order compelling the deposition. A motion to compel deposition attendance must include a declaration showing that the moving party inquired about the nonappearance.  CCP §2025.450(b)(2).   “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue," including by rescheduling.  Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124. 

ANALYSIS

As Plaintiff admits, Defendant timely served objections to the PMQ deposition notice, in which Defendant stated the PMQ was not appearing on the unilaterally noticed date. Plaintiff does not include a declaration stating that Plaintiff took the non-appearance of the PMQ on the unilaterally noticed date. Plaintiff attaches an email chain showing that counsel emailed defense counsel to see about rescheduling the deposition after receiving the objections. Based on this record, the Court finds that Plaintiff has not adequately established a basis for moving to compel the PMQ deposition. The Court therefore denies the motion without prejudice. The Court also denies the request for sanctions.

The Court is disappointed in the way in which counsel dealt with the scheduling of the deposition. Defendant’s objections to the deposition notice stated that the PMQ would not appear on the unilaterally noticed date but would appear on a mutually agreed upon date. Rather than pick up the telephone to find a mutually agreeable date for the deposition, plaintiff’s counsel sent a few emails asking for dates and then went ahead and filed this motion a few weeks later. Plaintiff did this without even scheduling an IDC with the Court to facilitate a resolution of the deposition scheduling without motion practice.

Defendant’s counsel also has a part to play in this completely avoidable discovery dispute. When Defendant served objections to the deposition notice, Defendant provided no alternative dates for the deposition. Nor did defense counsel pick up the telephone to schedule the deposition with Plaintiff’s counsel. Defense counsel appears to have taken no further action on the deposition scheduling until filing the opposition –which does not even contain any potential dates for the deposition.

The Court expects better from both counsel. Counsel shall meet and confer prior to the hearing to find a date for the PMQ deposition within one month of the hearing and inform the Court of this date at the hearing.