Judge Anne Hwang, Case Number: 23STCV19129, Date: 2024-11-13 Tentative Ruling

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.

This action stems from a stabbing at a Target store. Two related cases were filed by victims of the stabbing (“Molina case” and “Song” case). The assailant was eventually shot and subdued by Plaintiff Enedino Espinoza (“Plaintiff”) in the instant case, while working as a Watermark Security guard.

Defendant Target Corporation (“Defendant”) now moves to compel the deposition of Plaintiff in this action. Defendant seeks monetary sanctions. Plaintiff opposes and also seeks monetary sanctions. Defendant replies. Co-defendants BOP Figat7th LLC and Universal Protection Service, LP have filed Notice of Joinders to this motion.

Code of Civil Procedure section 2025.450(a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”¿ Section 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under section 2025.410.¿

A motion brought to compel a deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)¿¿

If a motion to compel deposition is granted, sanctions are mandatory in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).)¿

The Declaration of Jessica Farley states that after Plaintiff served his objection to the deposition, “[o]n October 7th, I reached out to plaintiff to meet and confer; however, no response was received.” (Farley Decl. ¶ 11.)[1]

Here, Defendant asserts that Plaintiff was deposed in the Molina and Song cases on June 29, 2024 for less than seven hours, but that the parties stipulated to depose Plaintiff again for the instant case. (Farley Decl. ¶ 3-5, Exh. 1.) Defendant asserts the agreement was that the parties would not repeat their questioning, and the time would be limited to seven hours total, absent a request for additional time from the Court. During Plaintiff’s June 29, 2024, Defendant did not question Plaintiff about his claims against it. (Id. ¶ 6.)

On September 27, 2024, Defendant served a deposition notice on Plaintiff for October 8, 2024. (Farley Decl. ¶ 7, Exh. 2.) On October 3, 2024, Plaintiff served an objection stating, among other things, that Plaintiff only agreed to one deposition, Plaintiff and his attorneys were unavailable, and not all parties were served. (Id. ¶ 9, Exh. 4.) The objection appears to assert that the deposition was noticed for the Molina/Song cases, and therefore is improper. (Id., ¶ 2.)

In opposition, Plaintiff argues primarily that Defendant cannot take another deposition, but also argues the notice was defective. Defendant’s deposition notice does not contain a proof of service (See Exh. 2), however Plaintiff asserts it was served on September 27, 2024, and therefore, Plaintiff did not receive mandatory notice. (Opp., 2, 5, 8.)

“An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.” (Code Civ. Proc., § 2025.270, subd. (a).) Ten days before the deposition was September 28, 2024, a Saturday. Two Court days before that (to account for electronic service) was September 25, 2024. Defendant does not address this is reply. Therefore, it appears that the notice was untimely.

Nevertheless, Plaintiff primarily argues that he only agreed to one deposition, and that he was already cross-examined by Defendant’s counsel.[2]

Here, the stipulation, which was signed by Plaintiff’s counsel on March 25, 2024, states in relevant part, the following:

“The parties agree that Enedino Espinoza will be deposed as a percipient witness in connection with Molina v. Target Corporation, Case No. 23STCV06764 (the “Molina action”) and Song v. Target Corporation, Case No. 23STCV06788 (the “Song action”) on a mutually agreeable date, with topics for examination to include the facts surrounding the subject incident and events leading up to it, including any topics pertaining to prior notice of dangerous conditions (the “Song/Molina Deposition”). The parties to Espinoza v. Target Corporation, Case No. 23STCV19129 (the “Espinoza action”) agree that upon notice by one or more parties to the Espinoza action, Mr. Espinoza will be deposed on a separate mutually agreeable date in connection with his affirmative claims in the Espinoza action, with topics for examination to include his alleged damages and the Espinoza defendants’ alleged liability in connection with Mr. Espinoza’s affirmative claims (the “Espinoza Deposition”). The parties agree that questions asked during the Molina/Song Deposition cannot be asked again during the Espinoza Deposition. All deposing parties agree to make a good faith effort to complete examination of Mr. Espinoza within a total of seven hours during the Molina/Song Deposition and the Espinoza Deposition.”

Plaintiff’s counsel disputes signing this stipulation.[3] (Rand-Lewis Decl. ¶ 12, 18.) Plaintiff also asserts that at a March 13, 2024 informal discovery conference (“IDC”), the Court recommended one deposition.[4] (Id. ¶ 13.)

As the Court previously noted in its June 25, 2024 order in the Molina/ Song matter, Espinoza has not provided any authority for the argument that only one deposition may be permitted, even though there were two separate (albeit related) cases. (See Min. Order Case 23STCV06764 6/25/24.)[5] Although the Court had encouraged the parties to attempt to complete the deposition in one 7-hour session, the Court indicated that it would hear any necessary further motion about a second deposition at an appropriate time. (See id.) The Court also rejected Espinoza’s argument regarding deposition priority. (See id.) Here, Defendant has established that relevant topics remain that had not been addressed in the first deposition. (See Motion at p. 4.) Accordingly, the Court finds that a second deposition is warranted.

However, because Defendant has not shown that the original deposition notice was timely served, the motion to compel is denied. The Court declines to award sanctions, finding that Defendant acted with substantial justification. (Code Civ. Proc., § 2023.030, subd. (a).) The parties are ordered to meet and confer to discuss the estimated time of a second deposition and the general topics that remain. To the extent further disputes remain, the parties shall participate in an informal discovery conference. Five days prior to any scheduled informal discovery conference, the parties shall file and serve a joint status report indicating the specific dispute and the parties’ respective positions, including citations to any deposition transcript, if applicable, and attaching a copy of the transcript.

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

[1] Plaintiff disputes that Defendant met and conferred.

[2] Plaintiff also argues the deposition is a tactic to prepare for the Molina/Song trial. (Opp., 5.) The Court notes that the Molina/Song case has settled, and the trial date was vacated. Therefore, this argument appears moot.

[3] Plaintiff’s counsel admits that the parties “stipulate[d] to one deposition of Mr. Espinoza, in two sessions, the first including Molina and Song as to liability, the second (which I thought was only in the Espinoza case) as to his damages.” (Id. ¶ 14; Opp., 6.) Plaintiff appears to argue that he believed these two parts of the deposition would occur on the same day and that Defendant’s counsel improperly affixed Plaintiff’s counsel’s signature on the stipulation. However, Plaintiff fails to show that it was clear that the two sessions of Plaintiff’s deposition would take place on the same day. Nor does Plaintiff explain why there would be two sessions of Plaintiff’s deposition if they were to take place on the same day.

[4] The Court and the parties discussed the possibility and timing of one deposition. Based on concerns about the inability to timely complete Espinoza’s deposition in one sitting due in part to outstanding medical records, the Court and parties discussed two depositions and discussed possible ways in which the depositions could be structured to avoid duplicative questioning at a second deposition. The Court did not indicate that it would rule that only one deposition would be permitted. In any event, no rulings were made at an informal discovery conference.

[5] In this opposition, Plaintiff cites to Code of Civil Procedure section 2025.610. Defendant argues that that section refers to depositions taken in one case. Regardless, that section also provides that for good cause shown, the court may grant leave to take a subsequent deposition.

DEPT:	32
HEARING DATE:	November 7, 2024
CASE NUMBER:	23STCV19129
MOTIONS:	Motion to Compel the Deposition of Plaintiff Enedino Espinoza
MOVING PARTY:	Defendant Target Corporation
OPPOSING PARTY:	Plaintiff Enedino Espinoza