Judge Alison Mackenzie, Case Number: 23STCV18639, Date: 2024-02-22 Tentative Ruling

Judge: Alison Mackenzie, Case: 23STCV18639, Date: 2024-02-22 Tentative Ruling

Case Number: 23STCV18639 Hearing Date: March 29, 2024 Dept: 55

NATURE OF PROCEEDINGS: Defendant Norton Associates, LLC’S Motion To Compel La Duchesse, LTD’S Person Most Qualified To Appear For And Answer Questions At Deposition; Defendant Norton Associates, LLC’S Motion To Compel Plaintiff Stephanie Jarin To Appear For And Answer Questions At Deposition.

In this case, LA DUCHESSE, LTD and STEPHANIE JARIN (“Plaintiffs”) seek damages against NORTON ASSOCIATES, LLC (“Defendant”) related to alleged substandard conditions at the commercial property Plaintiffs leased from Defendant.

Defendant has filed a motion to compel Plaintiffs’ deposition attendance and document production, and requests monetary sanctions, contending that Defendant met and conferred with Plaintiffs about deposition dates, but Plaintiffs failed to attend. Plaintiffs oppose the motion and request monetary sanctions, arguing that informal discovery efforts and meeting and conferring were insufficient towards arriving at a mutually agreeable deposition time, given Plaintiff STEPHANIE JARIN’s need to care for an ill spouse.

A motion lies to compel deposition attendance or document production, after service of a deposition notice, where a deponent fails to appear at, or proceed with, a deposition, without having served a valid objection under Section 2025.410. Code Civ. Proc., §2025.450, subd. (a).

No meet and confer is required to compel initial deposition attendance, but instead there must be a declaration showing that moving party inquired about the nonappearance. Code Civ. Proc., § 2025.450, subd. (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. See also Super. Ct. L.A. County, Local Rules, rule 3.26 (“guidelines adopted by the Los Angeles County Bar Association are adopted as civility in litigation recommendations….”).

The requests to compel documents described in deposition notices are premature, as the prescribed remedy to move to compel documents after they were not provided at depositions. “‘If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.’" Maldonado v. Sup. Ct. (2002) 94 Cal.App.4th 1390, 1398.

The Court’s independent research turned up no citable authority regarding deposition scheduling and caring for ill family members. In an unpublished portion of a published opinion, Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, facts relating to a deponent’s limited availability due to her husband’s illness were relevant to the question whether a summary judgment motion should be continued for time to obtain the deposition. See Labor & Empl. L. P 202169 (C.C.H.) [2014 WL 10910139] (“The parties thereafter attempted to schedule her deposition for different dates…, but some of the dates did not work because … her husband had surgery on one of the dates….”), available at Westlaw.com. However, there are analogous cases holding that party illness is a strong justification for delays. Serious illnesses of parties generally are good cause for granting continuances or extensions of dates. Hernandez v. Sup. Ct. (2004) 115 Cal.App.4th 1242, 1247-48. Denying a request for a continuance after a showing of illness of counsel may be an abuse of discretion, where it is simply a case of human frailty. Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 718. Denying a continuance request has been allowed if the evidence has failed to show that illness really was the need for a continuance. Mahoney v. Southland Mental Health Assocs. Med. Grp. (1990) 223Cal.App.3d 167, 172.

Here, because the parties have been unable to agree upon deposition times, the Court will now order the times to resolve the issue, while taking into consideration care for the ill spouse.

As for sanctions, because inquiries about deposition dates are required by law, and illness is involved, the Court finds substantial justification for positions of both sides, and denies both requests for sanctions.

Both motions are granted in part (as to compelling deposition attendance) and denied in part (as to compelling document production and imposing sanctions).

Commencing at 10:00 a.m. on May 31, 2024, Plaintiff STEPHANIE JARIN, an individual and the person most qualified for Plaintiff LA DUCHESSE, LTD, shall attend a deposition at Norton Rose Fulbright, 555 South Flower Street, Forty-First Floor, Los Angeles, California 90071.