Judge: Anne Hwang, Case: 21STCV29077, Date: 2024-01-09 Tentative Ruling

Case Number: 21STCV29077    Hearing Date: January 9, 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

            On August 6, 2021, Plaintiffs Clarence Davis and Sheldan Davis (Plaintiffs) filed a complaint against Defendants Ismael Cabuto, Maria Barbas Sanchez, and Does 1 to 50 for injuries resulting from a motor vehicle accident.

            Defendants Ismael Cabuto, Antonio Cabuto Zambrano, and Maria Barbas Sanchez (Defendants) move to compel Plaintiff Clarence Davis’ (Plaintiff) deposition. Plaintiff opposes.

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).)

MEET AND CONFER

The Declaration of Thomas Goodwin indicates Defendants have communicated with Plaintiff’s counsel and have rescheduled Plaintiff’s deposition multiple times in an attempt to secure Plaintiff’s attendance. Therefore, the meet and confer requirement has been satisfied.

DISCUSSION

Defendants first noticed Plaintiff’s deposition on August 27, 2023 set for September 19, 2023. (Goodwin Decl. ¶ 6, Exh. C.) Plaintiff requested mutual dates but did not provide any. (Id. ¶ 8.) On September 15, 2023, Defendant received a formal objection to the September 19, 2023 deposition. (Id. ¶ 11, Exh. H.) Plaintiff’s counsel offered October 20, 2023 as a mutual date and Defendant served an amended notice. (Id. ¶ 13, 16, Exh. J.)  On October 19, 2023, Plaintiff’s counsel informed Defendant he was unavailable, and that Plaintiff could not be deposed due to a medical procedure that prohibits him from speaking. (Id. ¶ 17.) On October 26, 2023, Defendants served a second amended notice of deposition on Plaintiff set for November 28, 2023. (Id. ¶ 19, Exh. P.) Plaintiff requested that the deposition be taken through written questions due to Plaintiff’s medical procedure. Plaintiff’s counsel indicated on November 20, 2023 he would provide documentation supporting why Plaintiff cannot be orally deposed. (Id. ¶ 21.) As of the filing of this motion, Defendants’ counsel has not received a reason. Defendants do not indicate whether Plaintiff objected to the November 28, 2023 deposition.

In opposition, Plaintiff does not dispute the above facts. However, Plaintiff states that during the November 28, 2023 deposition of Plaintiff Sheldan Davis, Clarence’s wife, she stated Plaintiff could not speak due to depression. (Opp., 2.) Plaintiff does not state any solution to the deposition and does not address Defendants’ suggestion that the deposition be conducted in writing. Plaintiff asserts he is attempting to provide Defendants with documentation regarding Plaintiff’s medical condition.

However, Plaintiff offers no medical documentation regarding the inability to be deposed and does not appear to have served formal objections to the November 28, 2023 deposition. Accordingly, the Court grants the motion to compel.

The Court declines to award monetary sanctions because it appears that there may be substantial justification, albeit without any supporting documentation.

CONCLUSION AND ORDER

Accordingly, Defendants’ motion to compel Plaintiff’s deposition is GRANTED. The parties shall meet and confer regarding the scheduling of the deposition.  

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