Judge: Anne Hwang, Case: 21STCV43551, Date: 2023-11-21 Tentative Ruling

Case Number: 21STCV43551    Hearing Date: November 21, 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

            On November 29, 2021, Plaintiff Michelle Pallay (Plaintiff) filed a complaint against Defendants Ji Won Kim, Kay Hwang, and Does 1 to 25 for injuries resulting from a motor vehicle accident.

 Defendants Ji Won Kim and Kay Hwang (Defendants) now move to compel Plaintiff’s deposition. 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).)

“Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence.” (Code Civ. Proc. § 2025.250(a).) “Unless the court orders otherwise, the parties may by written stipulation modify the procedures provided by this title for any method of discovery permitted under Section 2019.010.” (Code Civ. Proc. § 2016.030.)

MEET AND CONFER

The Declaration of Christopher K. Opfell does not indicate that Defendants contacted Plaintiff to inquire about the non-appearances. It also does not describe whether Defendants provided alternative dates to reschedule the deposition after the January 31, 2023 deposition was taken off calendar. Therefore, it does not appear the meet and confer requirement was met.

DISCUSSION

Defendants scheduled Plaintiff’s deposition via videoconference for October 17, 2022 and December 6, 2022. (Opfell Decl. ¶ 3, 5, Exh. A, C.) Each time, Defendant cancelled, and the deposition was taken off calendar. Next, Defendants noticed Plaintiff’s deposition for January 31, 2023. (Id. ¶ 7, Exh. E.) Defendants assert that on January 17, 2023, Plaintiff sent an objection to the deposition, and it was taken off calendar. (Id. ¶ 8, Exh. F.) However, the objection attached is not for Plaintiff’s deposition, but towards a subpoena for production of business records. Nevertheless, Defendants contend that as of the filing of this motion, Plaintiff has not appeared. The Court notes that no deposition went forward, as each time, Defendants cancelled it.

Moreover, Defendants’ motion asks the Court to order Plaintiff to appear at Defendants’ counsel’s office in Oklahoma City, Oklahoma. (Motion, 5–6.) Defendants do not indicate that Plaintiff has stipulated to being deposed out-of-state. In light of this, and the fact Defendants have not demonstrated they adequately met and conferred prior to bringing this motion, the motion to compel is denied.

Because the motion is denied, Defendants’ request for sanctions is denied.

CONCLUSION AND ORDER

Accordingly, Defendants Ji Won Kim and Kay Hwang’s motion to compel Plaintiff’s deposition is DENIED.  

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