Judge: Alison Mackenzie, Case: 23STCV05114, Date: 2023-11-21 Tentative Ruling

Case Number: 23STCV05114    Hearing Date: March 12, 2024    Dept: 55

NATURE OF PROCEEDINGS: Defendant Volkswagen Group Of America, Inc.’s Motion To Compel Deposition Of Plaintiff Eyal Claud Cohen; Request For Sanctions.

BACKGROUND

EYAL COHEN (“Plaintiff”) filed a Lemon Law Complaint against VOLKSWAGEN GROUP OF AMERICA, INC. (“Defendant”) in connection with Plaintiff’s leased 2019 Audi E-Tron. Defendant has filed a motion for an order compelling Plaintiff’s deposition and imposing monetary sanctions. Plaintiff opposes the motion and seeks sanctions.

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

Defendant adequately shows that Plaintiff did not attend the deposition and that Defendant inquired about the nonattendance. For this reason, the Court will grant the motion to compel. The Court is disappointed, however, in the way in which counsel dealt with the scheduling of the deposition. Plaintiff’s objections to the deposition notice stated that Plaintiff and counsel were unavailable on the unilaterally noticed date. Rather than pick up the telephone to find a mutually agreeable date for the deposition, defense counsel waited until the morning of the deposition to inquire about Plaintiff’s appearance. When Plaintiff did not appear, counsel apparently took no further action to address the scheduling of the deposition until filing this motion to compel a month later.

Plaintiff’s counsel also has a part to play in this completely avoidable and costly discovery dispute. When Plaintiff served objections to the deposition notice, Plaintiff provided no alternative dates for the deposition. Nor did Plaintiff pick up the telephone to schedule the deposition with defense counsel. Plaintiff’s counsel appears to have taken no further action on the deposition scheduling until filing the opposition and simultaneously offering dates for the deposition.

The Court expects better from both counsel. Counsel shall meet and confer prior to the 3/12/24 hearing to find a date for Plaintiff’s deposition within one month of the hearing (i.e., by 4/12/24). The Court finds substantial justification for both parties’ positions in this matter given the woeful meet and confer efforts, and therefore exercises its discretion to deny both sanctions requests. In the future, the Court expects the parties to schedule an IDC before filing any motions to compel.