Judge: Anne Hwang, Case: 22STCV03624, Date: 2024-02-20 Tentative Ruling

Case Number: 22STCV03624    Hearing Date: February 20, 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 Urth Caffe Corporation (“Defendant”) moves to compel Plaintiff Jorie Esposito’s (“Plaintiff”) deposition. Plaintiff opposes.[1] The reply was due February 9, 2024. No reply 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).)

MEET AND CONFER

The Declaration of Christopher Townsley does not set forth any facts that Defendant attempted to meet and confer with Plaintiff to schedule a deposition on a mutually beneficial date. The declaration also does not address the fact that Plaintiff asserted she was available to be deposed on March 1, 2, or 3, 2023. (See Exh. D.) Therefore, the meet and confer requirement has not been met.

DISCUSSION

Defendant first served a Notice of Deposition on Plaintiff on March 18, 2022, setting a remote deposition on July 12, 2022. (Townsley Decl. ¶ 3, Exh. A.) Plaintiff objected on June 27, 2022, stating she was unavailable but did not provide alternative dates. (Id. ¶ 4, Exh. B.) On November 30, 2022, Defendant served a second Notice of a Deposition on Plaintiff, set for January 17, 2023. (Id. ¶ 5, Exh. C.) Plaintiff objected on January 11, 2023 based on unavailability and noted she was available March 1, 2, and 3, 2023. (Id. ¶ 6, Exh. D.) On April 7, 2023, Defendant served a third Notice of Deposition set for May 16, 2023. (Id. ¶ 7, Exh. E.) Plaintiff objected on May 10, 2023 based on unavailability, but did not provide alternative dates. (Id. ¶ 8, Exh. F.) Based on this history of attempting to schedule Plaintiff’s deposition, Defendant asks the Court to compel Plaintiff’s appearance.

In opposition, Plaintiff states that the parties initially agreed on a remote deposition set for December 1, 2023. (Moreno Decl. ¶ 4.) However, the day before, Defendant’s counsel indicated that the deposition would need to take place over two days since he was observing a religious holiday on December 1. (Id. ¶ 5.) Plaintiff did not agree to this and the parties tentatively rescheduled the deposition for December 14, 2023. (Id. ¶ 5–7.) However, Plaintiff had holiday plans and could not sit for an in-person deposition. (Id. ¶ 8.) Plaintiff asserts that due to financial issues, she has relocated to Chicago and cannot return to California until March 2024. (Id. ¶ 9.) Plaintiff asserts she has offered to appear for a remote deposition.

Defendant has not filed a reply. Therefore, based on the above, since it does not appear Defendant met and conferred to schedule a mutually agreeable date, and Plaintiff served timely objections, the motion to compel is denied. As a result, the Court declines to award monetary sanctions to either party. However, the parties are strongly encouraged to meet and confer to schedule Plaintiff’s deposition.   

CONCLUSION AND ORDER

Accordingly, Defendant’s motion to compel Plaintiff’s deposition is DENIED.

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