Judge: Anne Hwang, Case: 22STCV37756, Date: 2023-08-09 Tentative Ruling

Case Number: 22STCV37756    Hearing Date: October 25, 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 December 2, 2022, Plaintiff Nicole McClellan filed a complaint against Defendants Megan Shum, Greg Transportation, Inc., Weimin Chen, and Does 1 to 50 for injuries resulting from a motor vehicle accident.

Plaintiff now moves to compel the deposition of Defendant Weimin Chen (Defendant). Defendant opposes and Plaintiff 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 Evan Jacobi describes how Plaintiff has corresponded with Defendant throughout the year to schedule the deposition. (Jacobi Decl. ¶¶ 27–30, Exh. 18.) Thus, based on the declaration, it appears Plaintiff has made a good faith attempt to resolve this issue.

DISCUSSION

Plaintiff has served five notices to take Defendant’s deposition this year. Plaintiff served a Third Continued Notice of Deposition set for July 17, 2023 and the Fourth Notice of Deposition set for August 21, 2023. (Jacobi Decl. ¶ 15, Exh. 12; Id. ¶ 24, Exh. 16.) Each time, Defendant claimed he was unavailable but did not propose additional dates. Notably, the Fourth Notice of Deposition was served on Defendant’s counsel. (See Jacobi Decl., Exh. 16.) Plaintiff asserts Defendant has yet to appear at the noticed depositions or to provide future dates.

Defendant’s counsel asserts that Defendant moved to China and cannot be contacted. Counsel for Defendant has attempted to make contact with his client since February 2023. (Opp., 10.) However, the Court notes that Defendant stipulated to vacate the entry of default in July of 2023 and subsequently filed an answer on August 31, 2023. Having now appeared in the case, Defendant provides no legal basis to refuse to continue with the litigation. Because Defendant has not served objections on the noticed depositions and has failed to appear, the motion to compel Defendant’s deposition is granted.[1]

Plaintiff seeks $3,560.00 in monetary sanctions representing a $250 hourly rate and fourteen hours, plus the $60 filing fee. The Court declines to award monetary sanctions because the Court finds that sanctions would be unjust.

CONCLUSION AND ORDER

Accordingly, Plaintiff Nicole McClellan’s motion to compel Defendant’s deposition is GRANTED.

Defendant Weimin Chen is ordered to appear for deposition within 30 days of notice of this order.  

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