Judge: Audra Mori, Case: 19STCV23230, Date: 2022-10-14 Tentative Ruling

Case Number: 19STCV23230    Hearing Date: October 14, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Michal Makara (“Plaintiff”) filed this action against Defendant Jenelle Samaan (“Defendant”) for damages arising from a motor vehicle accident.

Defendant, at this time, moves to compel non-parties, and Defendant’s children, Desmond Saaman’s (“Desmond”) and Evolette Samaan (“Evolette”) to appear for their depositions pursuant to deposition subpoenas.  Defendant opposes the motion.  The Court has not received any reply to the opposition. 

2. Motion to Compel Compliance with Deposition Subpoenas

The service of a deposition notice, pursuant to CCP § 2025.240, is effective to require any party deponent to attend, testify, and produce materials for inspection at a deposition.  (CCP § 2025.280(a).)  To require the attendance and testimony of a non-party deponent, as well as his or her production of any document or tangible thing for inspection and copying, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant CCP § 2020.010, et seq.  (CCP §§ 2020.010(b), 2025.280(b); See also Sears, Roebuck & Co. v. National Union Fire Insurance Company of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by CCP §§ 2020.010, et seq., and is primarily carried out by way of subpoena].) 

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production.  (CCP § 2025.480(a).)  If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.  (CCP § 2025.480(i).) 

In this case, Plaintiff asserts that at the time of the accident, Defendant was driving with her two children- Desmond and Evolette- and so they are eyewitnesses to the accident.  Plaintiff contends that Defendant is refusing to produce Desmond and Evolette despite not seeking a protective order regarding their depositions.  Plaintiff argues that Defendant is disputing liability and that Defendant has failed to convey a valid reason for refusing to produce Desmond and Evolette. 

In opposition, Defendant provides that at the time of the accident, Desmond and Evolette were six and four years old, respectively.  Desmond is now 11 years old, and Evolette is nine years old.  Defendant provides that Desmond and Evolette have no recollection of the accident, and that Defendant has agreed to not call the children as witnesses at trial.  Defendant asserts Defendant informed Plaintiff of this, but Plaintiff wanted Defendant to also agree to not mention the children were in Defendant’s car at the time of the accident.  Defendant states she would not agree to this.  Defendant argues that Plaintiff is seeking to depose Desmond and Evolette only to harass and annoy Defendant. 

While Defendant contends that it would be pointless to proceed with Desmond’s and Evolette’s depositions, Defendant admits that Desmond and Evolette were in her vehicle with her at the time of the subject accident.  Consequently, this is not a case where a party is seeking to depose someone who could not have knowledge of the incident.  Desmond and Evolette are admittedly fact witnesses to the accident.  To the extent that Defendant attests that Desmond and Evolette do not recall the accident, Plaintiff is entitled to confirm this through the children’s testimony and to ensure they do not possess different facts or perspectives of the accident. 

Furthermore, Defendant cites no authority suggesting that Plaintiff is precluded from deposing Desmond and Evolette based on Defendant’s contention that they do not recall the accident.  Defendant points to no case that would prevent a child from being deposed under these circumstances.  Nor does Defendant establish that making Desmond and Evolette available for deposition would cause Defendant undue burden, harassment, embarrassment, or annoyance.  Moreover, although Defendant asserts she objected to the deposition subpoenas for Desmond and Evolette, Defendant does not establish the applicability or validity of any particular objection.  Accordingly, Defendant does not show that Plaintiff is precluded from taking Desmond’s and Evolette’s depositions, and as Plaintiff argues, Defendant has not otherwise filed a motion for protective order regarding the deposition subpoenas.   Nevertheless, to the extent that Plaintiff contends that the depositions must proceed in person, at the election of either the deponents- Desmond and Evolette- or the parties, the depositions may proceed remotely.  (CCP § 2025.310.) 

            The motion to compel Desmond and Evolette to comply with the deposition subpoenas are granted.  Defendant is required to have Desmond and Evolette appear for deposition at a date, time, and location to be noticed by Plaintiff.  Plaintiff must give at least fifteen (15) days’ notice of the deposition (notice extended per Code if by other than personal service).  Pursuant to CCP § 2025.310, at the election of either Plaintiff, Defendant, or the children, the deposition must be completed remotely.  It is expected that the parties will proceed with the minor children’s deposition cautiously and professionally.  It is noted that the depositions were noticed to occur previously at 10:00 a.m. and noon on the same day in the past, indicating that they were expected to last less than two hours.  Given the young ages of the Desmond and Evolette at the time of the incident, and the years that have passed since, it is possible that the depositions will confirm that they lack significant memory of the incident, in which case they should be even more brief.          

Monetary sanctions are warranted pursuant to CCP § 2023.030(a), but Plaintiff will not be awarded the full amount requested.  Plaintiff is awarded one hour for preparing the motion at the reasonable rate of $200 per hour as attorney fees.  Further, Plaintiff is awarded the $60 motion filing fee.  Sanctions are sought and imposed against Defendant and Defendant’s counsel of record, jointly and severally.  They are ordered to pay sanctions to Plaintiff, by and through counsel of record, in the total amount of $260, within thirty (30) days.   

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 14^th day of October 2022