Judge: Anne Hwang, Case: 21STCV21713, Date: 2023-11-20 Tentative Ruling

Case Number: 21STCV21713    Hearing Date: March 4, 2024    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.  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

 Defendant David de Poto (“Defendant”) moves to compel Plaintiffs Netsanet Loffe, Lidya Seifu, and Woldeyesus Geberemedhin’s (“Plaintiffs”) deposition. Plaintiffs have been self-represented since June 2, 2023. Defendant also seeks monetary sanctions. No opposition has been filed.

LEGAL STANDARD

“If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, 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 . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

“A motion under subdivision (a) [above] shall comply with both of the following:

1. The motion shall 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.

2. The motion shall 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.”

(Code Civ. Proc., § 2025.450, subd. (b).)

If a motion is granted, the court shall impose a monetary sanction in favor of that party unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the sanction unjust. (Code Civ. Proc. § 2025.450 (g).)

“An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.” (Code Civ. Proc. § 2025.270(a).) Service is extended by five calendar days if notice was served via mail and the address and place of mailing are in California. (See Code Civ. Proc. §§ 2016.050; 1013.)

MEET AND CONFER

The Declaration of Darren G. Mayers states that on November 8, 2023, Defendant’s counsel sent a correspondence via letter and email to Plaintiffs to inquire about the non-appearances. (Mayers Decl. ¶ 17, Exh. E.) Plaintiffs did not respond. (Id. ¶ 18.) Therefore, the meet and confer requirement has been satisfied.

DISCUSSION

Defendant describes previously set depositions for July 13, 2023, July 14, 2023, August 29, 2023, and August 30, 2023, which were eventually canceled due to Plaintiffs becoming self-represented and engaging in settlement talks. On October 27, 2023, Defendant served Plaintiffs with an Amended Notice of Deposition via mail, setting depositions for November 2, 2023, and November 3, 2023. (Id. ¶14, Exh. C.) On the day of the depositions, Plaintiffs failed to appear, and Defendant obtained a Certificate of Non-Appearance. (Id. ¶ 15, Exh. D.)

However, Defendant did not provide enough notice to Plaintiffs under Code of Civil Procedure section 2025.270(a). Since Defendant served the notices via mail, they should have been served by the latest, on October 18, 2023 for the November 2, 2023 depositions, and October 19, 2023 for the November 3, 2023 deposition.[1] Since the notices were served on October 27, 2023, they were untimely. As a result, the motions to compel Plaintiffs’ depositions are denied as procedurally defective. The Court denies Defendant’s request for monetary sanctions.

CONCLUSION AND ORDER

Accordingly, Defendant’s motions to compel Plaintiffs’ depositions are DENIED.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.