Judge: Anne Hwang, Case: 22STCV10555, Date: 2023-11-09 Tentative Ruling

Case Number: 22STCV10555    Hearing Date: November 9, 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 March 28, 2022, Plaintiff Joy White (Plaintiff) filed a complaint against Defendants Roberta Stephens Villas Preservation, L.P. and Does 1 to 50 for injuries related to a slip and fall.

            Defendant Roberta Stephens Villas Preservation, L.P. (Defendant) now moves to compel Plaintiff’s deposition. Plaintiff opposes and Defendant replies.

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 Clarence E. Ellington III does not indicate that he contacted Plaintiff’s counsel after the February 16, 2023 deposition to inquire about the non-appearance. Therefore, it appears the meet and confer requirement was not met.

DISCUSSION

Defendant asserts that on January 23, 2023, it noticed Plaintiff’s deposition set for February 16, 2023. (Ellington Decl. ¶ 3, Exh. A.) On January 23, 2023, Defendant also emailed Plaintiff to provide alternative dates if she could not attend the deposition. (Id. ¶ 4.) On February 15, 2023, a paralegal from Plaintiff’s counsel’s office stated Plaintiff would not appear for the deposition since notice was not provided. On February 16, 2023, Plaintiff did not appear at the deposition and Defendant obtained a certificate of non-appearance. (Id. ¶ 6, Exh. D.)

In opposition, Plaintiff asserts that she appeared for deposition on May 1, 2023. Also, she incorrectly argues that the present motion was filed on May 22, 2023. The record shows the motion was filed on March 22, 2023. However, given that Plaintiff has appeared for deposition, the motion to compel is moot.

In reply, Defendant now only seeks monetary sanctions. Plaintiff argues that her counsel did not receive notice of the deposition. (Opp., 3.) Defendant’s exhibit A shows the notice was served electronically on Plaintiff’s counsel; a follow-up email was also sent on January 23, 2023. (Ellington Decl., Exh. B.)

Defendant seeks $905.00 in monetary sanctions representing a $195 hourly rate and four hours to prepare this motion, plus the $125 Court Reporter fee. However, in light of Defendant’s failure to provide a meet and confer declaration, the Court declines to award monetary sanctions.

CONCLUSION AND ORDER

Accordingly, Defendant Roberta Stephens Villas Preservation, L.P.’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.