Judge: Anne Hwang, Case: 20STCV33591, Date: 2023-08-11 Tentative Ruling

Case Number: 20STCV33591    Hearing Date: August 11, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

This personal injury action stems from an incident when Jose Garcia (“Plaintiff”) was working on the roof of the home owned by Beatriz and Roberto Gutierez (“Defendants”) on September 8, 2018 and fell to the ground sustaining injuries. (First Amended Complaint, hereinafter, “FAC” ¶ 8.) Plaintiff filed their Complaint on September 2, 2020, then subsequently filed their FAC on July 8, 2021 alleging two causes of action: (1) Negligence and (2) Premises Liability.

Defendants filed the instant Motion to Compel Plaintiff’s Deposition (“Motion”) on February 7, 2023. No Opposition Papers nor Reply Papers have been filed. 

DISCUSSION

Legal Standard –

A motion lies to compel deposition attendance and 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. (CCP §2025.450(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. (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. 4^th 1109, 1124. See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).)

Analysis –

Defendants offer the Declaration of Courtney N. Garcia (“Garcia Dec.”) which states that on January 13, 2022 Defendants noticed Plaintiff’s deposition to take place on January 27, 2022. (Garcia Decl. ¶ 3.) However, although Plaintiff did not object to the deposition notice, Plaintiff’s counsel informed Defendants that Plaintiff had been deported to Mexico and was therefore unavailable. (Garcia Decl. ¶ 4) Defendants state that Plaintiff never provided Defendants with alternate dates for his deposition, and that Defendants then proceeded with taking a Certificate of Non-Appearance on January 27, 2022. (Garcia Decl. ¶ 5-7.) Defendants continued to inquire with Plaintiff’s counsel about the availability of a deposition, but have not received any update about his whereabouts. (Garcia Decl. ¶ 9.)

Accordingly, the Court grants the motion to compel Plaintiff’s deposition.

Defendants also seek sanctions against Plaintiff for the discovery abuse.  However, given the representation that Plaintiff has been deported, the imposition of sanctions would be unjust. Defendants do not seek sanctions against Plaintiff’s counsel.

CONCLUSION

Accordingly, Defendants’ Motion to Compel Plaintiff’s Deposition is granted. The motion for sanctions is denied. Counsel for Plaintiff must meet and confer with counsel for Defendants regarding Plaintiff’s whereabouts and the scheduling of a deposition.

Defendants shall give notice of the Court’s order and file a proof of service of such.