Judge: Anne Hwang, Case: 23STCV18741, Date: 2024-05-14 Tentative Ruling

Case Number: 23STCV18741    Hearing Date: May 14, 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

            On August 8, 2023, Plaintiff Yeonei Baik (“Plaintiff”) filed a complaint against Defendants Avetik Aghekyan and Does 1 to 25 for injuries resulting from a motor vehicle accident.

            Plaintiff now moves to compel Defendant Avetik Aghekyan’s (“Defendant”) deposition and the corresponding request for production. Plaintiff also seeks monetary sanctions. 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 Mario E. Martinez does not show that the parties met and conferred following the January 2024 deposition date or discussed the facts surrounding Defendant’s disappearance. Therefore, the meet and confer requirement is not satisfied.

DISCUSSION

On October 30, 2023, Plaintiff noticed Defendant’s deposition, set for November 30, 2023. (Martinez Decl. ¶ 4, Exh. 1.) Plaintiff requested alternative dates within five days if the date did not work for Defendant. On November 21, 2023, Defendant served an objection based on the fact the date was unilaterally set and provided alternative dates on December 1, 2023. (Id. ¶ 5–7, Exh. 2.) That day, Plaintiff re-noticed the deposition for January 9, 2024—one of the dates provided by Defendant. (Id. ¶ 8, Exh. 5.) On January 4, 2024, Defendant served an objection, stating that Defendant’s counsel had lost contact with Defendant and was thus unavailable. (Id. ¶ 10–12, Exh. 6.)

In opposition, Defendant’s counsel contends that an investigator has been retained to locate Defendant. Once Defendant is located, Defendant agrees to complete the deposition within the next 120 days. Defendant’s counsel also argues Defendant does not speak or read English, and efforts are being made to communicate to Defendant his discovery obligations.

In reply, Plaintiff argues that Defendant has failed to set forth the steps taken to locate Defendant.

Based on the above, it is unclear when Defendant lost contact with his counsel or if they have ever established contact. Defendant’s answer was filed on November 20, 2023. The objection served on January 4, 2024 does not object to an “error or irregularity” with the notice under section 2025.410. Defendant also does not provide sufficient information about the effort to locate Defendant and when exactly counsel lost contact. Therefore, because Defendant failed to proceed with the January 9, 2024 deposition without a valid objection, the motion to compel is granted.  

The Court finds that Plaintiff did not satisfy the meet and confer requirement and therefore declines to award sanctions.

CONCLUSION AND ORDER

Accordingly, Plaintiff’s motion to compel Defendant’s deposition is GRANTED. Defendant shall appear for deposition within 60 days.

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