Judge: Anne Hwang, Case: 21STCV42663, Date: 2023-10-05 Tentative Ruling

Case Number: 21STCV42663    Hearing Date: October 5, 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.  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

Plaintiff Savanna Stranger (Plaintiff) noticed the deposition of the Defendant City of Los Angeles’ “Person Most Qualified” for April 11, 2023. Plaintiff previously took the deposition of City of Los Angeles’ (City) PMQ, William Candlish, who was unfamiliar with certain topics relating to the Department of Public Works.

Plaintiff now brings this motion asserting that City has repeatedly taken the subsequent deposition off calendar, without serving objections.

The opposition was due September 21, 2023. No opposition has been filed.

LEGAL STANDARD

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A party desiring to take an oral deposition shall give a notice in writing which states the specification of reasonably particularly of any materials to be produced by the deponent. (Code Civ. Proc., § 2025.220, subd. (a)(4).) A properly served deposition notice is effective to require a party to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).)  

Code of Civil Procedure section 2025.450(a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”  Section 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under section 2025.410. 

A motion brought to compel a deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)  

If a motion to compel deposition is granted, sanctions are mandatory 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).) 

DISCUSSION

Here, Plaintiff cannot move the court to compel a deposition until the deponent fails to appear. (Code Civ. Proc. § 2025.450(a).)  According to Plaintiff, the noticed depositions have been taken off calendar voluntarily. (Heimanson Decl. ¶ 7–10.) Nowhere does Plaintiff assert that they noticed a deposition, City failed to appear, or that they received a certificate of non-appearance. Therefore, Plaintiff’s motion is procedurally defective and is denied without prejudice.  

However, the Court strongly encourages the parties to meet and confer telephonically or in person to avoid the need for further motions or requests for sanctions on this issue.

CONCLUSION AND ORDER

Therefore, the Court DENIES Plaintiff Savanna Stranger’s Motion to Compel Deposition of Defendant City of Los Angeles’ “Person Most Qualified” without prejudice.

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