Judge: Armen Tamzarian, Case: 21STCV08013, Date: 2023-02-17 Tentative Ruling

Case Number: 21STCV08013    Hearing Date: February 17, 2023    Dept: 52

Defendant Hyundai Motor America’s Motion to Compel Deposition Plaintiff’s Deposition

            Defendant Hyundai Motor America moves to compel the deposition of plaintiff Bernhard G. Mueller.  One may move to compel the deposition of a party who fails to appear at deposition “without having served a valid objection under Section 2025.410.”  (CCP § 2025.450(a).) 

Meet and Confer

            Plaintiff argues defendant did not adequately try to informally resolve this dispute.  Defendant made a sufficient effort.  In his objection to the third amended notice of deposition, plaintiff stated, “Plaintiff will not be produced for deposition on the date and time noticed.  This deposition was unilaterally noticed for a date and/or time Plaintiff and/or Plaintiff’s counsel is/are unavailable.”  (Kom Decl., Ex. I., p. 2.)  The next day, defendant’s counsel wrote to plaintiff, “Please provide alternate dates for plaintiff’s deposition to occur.”  (Kom Decl., Ex. J.)  Plaintiff did not respond before defendant filed this motion on November 22.  (Kom Decl., ¶ 13.) 

This dispute revolves around scheduling the deposition.  Defendant asked plaintiff to propose dates.  The onus was on plaintiff.  He did not propose any dates until January 12, over six weeks after defendant filed this motion.  (Kaye Decl., ¶ 17, Ex. 15.)    

Plaintiff’s Objection

            Plaintiff did not serve a valid objection to the notice of deposition under Code of Civil Procedure section 2025.410.  Plaintiff made the following objections to the third amended notice of his deposition: “The deposition of individuals is limited to one day and seven hours.  As such, the deposition may not proceed day to day as noticed by Defendant.  Subject to, and without waiving the foregoing objections, Plaintiff will not be produced for deposition on the date and time noticed.  This deposition was unilaterally noticed for a date and/or time Plaintiff and/or Plaintiff’s counsel is/are unavailable.”  (Kom Decl., Ex. I., p. 2.)  These objections are not valid. 

First, plaintiff’s objection about the length of the deposition is not grounds for failing to appear entirely.  Though depositions are generally “limited to seven hours of total testimony” (CCP § 2025.290(a)), that is not grounds for refusing to testify at all.  At most, this objection permits plaintiff to end the deposition after seven hours of testimony.

Moreover, the deposition notice does not indicate the deposition will last more than seven hours of testimony.  It provides, “If, for any reason, the taking of said deposition is not completed on the scheduled date, the taking of said deposition will be continued from day to day, excluding Sundays and holidays, until completed.”  (Kom Decl., Ex. G.)  Rather than indicating an attempt to improperly extend the deposition beyond seven hours, this language means that if the deposition is interrupted for some reason, it can be resumed the next day.  As a leading practice guide states, “A notice of deposition often states that the deposition will commence on a certain date and ‘continue day to day until completed.’ … It is doubtful that this boilerplate language by itself obligates a deponent to remain indefinitely.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶¶ 8:490.5-8:490.6.) 

Second, plaintiff’s objection that the deposition was unilaterally noticed is not valid.  That may be a reason to not attend as a practical matter, but it is not a valid objection under Code of Civil Procedure section 2025.410.  That section refers to objections to “a deposition notice that does not comply with Article 2 (commencing with section 2025.210),” not for other reasons a party cannot attend a deposition. 

Though it is a professional courtesy to mutually schedule a deposition, it is not required by the Discovery Act.  “An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.”  (CCP § 2025.270(a).)  “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action… to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”  (CCP § 2025.280(a).)\

Plaintiff’s objections to the third amended notice of his deposition are overruled.

Sanctions

            Defendant moves for $1,250 in sanctions against plaintiff.  “If a motion” to compel deposition “is granted, the court shall impose a monetary sanction … 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.”  (CCP § 2025.450(g)(1).) 

            Plaintiff did not act with substantial justification.  Sanctions are just under the circumstances.  A plaintiff’s deposition is among the most crucial discovery in a civil action.  Defendant only resorted to bringing this motion after trying to depose plaintiff several times, beginning in May 2021.  (Kom Decl., ¶¶ 2-12.)  The court finds defendant reasonably incurred $1,250 in expenses in making this motion.

Disposition

            Defendant Hyundai Motor America’s motion to compel plaintiff’s deposition and request for monetary sanctions is granted.  Plaintiff Bernhard G. Mueller is ordered to appear and testify at his deposition within 20 days.  Plaintiff Bernhard G. Mueller is ordered to pay defendant $1,250 in sanctions within 20 days.