Judge Andrew E. Cooper, Case Number: 23CHCP00250, Date: 2023-09-20 Tentative Ruling

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Los Angeles Superior Court Case # 23CHCP00250

MOVING PARTY: Petitioner Interinsurance Exchange of the Automobile Club (“Petitioner”)[1]

RELIEF REQUESTED: An order compelling Respondent to appear in person for a deposition on a date and at a time certain to be set by the court. Petitioner also seeks $1,246.45 in monetary sanctions against Respondent.

TENTATIVE RULING: The motion is continued. The Court orders that the parties further meet and confer, in person or telephonically, to discuss all outstanding discovery issues, including the taking of Respondent’s deposition.

This is an insurance action in which Petitioner, an insurance company, seeks to compel insured Respondent’s deposition in the parties’ dispute of Respondent’s underinsured motorist claims.

On 11/11/22, Petitioner served a deposition notice for Respondent’s deposition to be taken on 2/14/23. (Ex. A to Decl. of William O. Woodland.) On 2/13/23, Petitioner served a Notice of Continuance of Deposition for Respondent’s deposition to be taken on 3/23/23. (Ex. B to Woodland Decl.) “Although Claimant appeared for the deposition, he did so via cell phone and the transmission was of poor-quality causing counsel to terminate the deposition and reschedule the proceeding for another day.” (Woodland Decl. ¶ 4.)

On 3/27/23, Petitioner again noticed Respondent’s deposition, to be taken on 4/20/23. (Ex. C to Woodland Decl.) Respondent failed to appear on the deposition date, and a Certificate of Non-Appearance was taken. (Ex. F to Woodland Decl.)

While the parties reached a settlement on 4/28/23, Petitioner’s counsel declares that Respondent is now represented by new counsel, and the parties have not communicated since the change of attorney. (Woodland Decl. ¶¶ 7–8.)[2]

On 6/13/23, Petitioner filed its Petition to Establish Case Number in Uninsured/Underinsured Motorist Action. It appears the proof of service is defective: indicates electronic service but does not list the email addresses served. On 6/29/23, Petitioner filed the instant motion to compel Respondent’s deposition. No opposition has been filed to date.

A party may, upon proper written notice, obtain discovery by taking the oral deposition of any natural person, organization, partnership, association, or governmental agency. (Code Civ. Proc. §§ 2025.010, 2025.220.) A party deponent can be required to attend a deposition by service of a deposition notice on the party's attorney. (Code Civ. Proc. § 2025.280, subd. (a).)

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, … without having served a valid objection …, fails to appear for examination, … 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 a deposition must (1) “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice;” and (2) “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Id. at subd. (b) [emphasis added].)

Here, Petitioner’s counsel makes no representations that he has attempted to meet and confer with Respondent’s counsel regarding the issues raised in the instant motion, nor a declaration that Petitioner has contacted Respondent to inquire about the nonappearance. Accordingly, the Court finds that counsel has failed to satisfy the meet-and-confer requirement under Code of Civil Procedure section 2025.450, subdivision (b)(2).)

Based on the foregoing, the Court orders that the parties further meet and confer, in person or telephonically, to discuss all outstanding discovery issues.

If the Court grants a motion to compel a deposition, it “shall impose a monetary sanction … 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).)

Here, Petitioner requests that the Court impose a monetary sanction against Respondent in the amount of $1,246.45, “based upon two unsuccessful attempts to take Claimant’s deposition leading up to this motion.” (Woodland Decl. ¶¶ 9–10.) However, as the Court continues the instant motion, it finds that monetary sanctions are not warranted at this time.

The motion is continued. The Court orders that the parties further meet and confer, in person or telephonically, to discuss all outstanding discovery issues including the taking of Respondent’s deposition.

[1] Petitioner mistakenly names itself as the “Respondent” throughout its motion. Here, the Court refers to Petitioner as “Petitioner,” and claimant William H. Bennett, Jr. as “Respondent,” in accordance with the case record.

[2] The Court notes that the Declaration of William O. Woodland contains two different paragraphs numbered 7.