Judge: Audra Mori, Case: 20STCV02753, Date: 2022-09-12 Tentative Ruling

Case Number: 20STCV02753    Hearing Date: September 12, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiffs Ricardo Hernandez and Marlon Ernesto Vasquez Burgos (collectively, “Plaintiffs”) move to compel Nathaniel Gutierrez’s (“Defendant”) deposition.  Defendant opposes the motion, and Plaintiff filed a reply. 

This matter was last heard on September 12, 2022, where Plaintiffs were ordered to file a declaration regarding their meet and confer efforts to resolve this matter by September 2, 2022.  Any reply was then due by September 7, 2022.  Plaintiffs did not file their declaration until September 6, 2022; however, in the absence of any objection and showing of prejudice, the Court will consider the declaration.

CCP § 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.”  CCP § 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under §2025.410.

A motion to compel deposition “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.”  (CCP § 2025.450(b)(2).) 

Here, Plaintiffs state they noticed Defendant’s deposition for February 17, 2022, but after meeting and conferring with Defendant’s counsel, Plaintiffs served an amended notice setting Defendant’s deposition for March 8, 2022.  Plaintiffs assert that Defendant did not appear, so Plaintiffs took a certificate of non-appearance.  Plaintiffs provide that to date, Defendant has not appeared for his deposition.  Further, Plaintiffs state they met and conferred with defense counsel regarding Defendant’s failure to appear at the time of the March 8, 2022 deposition.  In opposition, Defendant indicates that Defendant is not responsive to his counsel and argues that the motion is misplaced because Defendant is not disputing liability.  Plaintiffs, in reply, contend that while Defendant admits that he is at fault for the accident, Defendant simultaneously denies that he was not exercising reasonable care while operating his vehicle.  Plaintiffs assert that as a result, they wish to depose Defendant out of an abundance of caution. 

Plaintiffs are entitled to take Defendant’s deposition, and Defendant did not otherwise file a motion for protective order concerning the deposition or provide any authority to find the deposition should not be ordered.  Defendant’s counsel suggests that the reason that a deposition has not occurred is that Defendant is not responding to counsel.  Further, to the extent Defendant argues Plaintiffs’ motion is untimely, discovery motions must be heard 15 days before trial, and with trial currently set for November 18, 2022, the motion is timely.  (CCP § 2024.020.)

Therefore, Plaintiffs’ motion to compel Defendant’s deposition is granted.  CCP § 2025.450(a).)  Defendant is ordered to appear for deposition at a date, time, and location to be noticed by Plaintiffs.  Defendant must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service).

The Court notes Plaintiffs’ deposition notices contain a request for production of documents.  Concerning the production request included in the deposition notice, Plaintiffs do not set forth good cause for the production of any documents.  (CCP § 2025.450(b)(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.”].)  Therefore, Plaintiffs’ motion is denied as to the request for production of documents in the deposition notice. 

CCP § 2025.450(g)(1) requires the Court to impose sanctions unless it finds the deponent acted with substantial justification or there are circumstances that render imposition of sanctions unjust.  Here, Plaintiffs request sanctions against defense counsel only in the amount of $2,160.00.  However, Defendant, in opposition, asserts that sanctions against defense counsel should be issued because defense counsel has made numerous attempts to contact Defendant.  Given the evidence that defense counsel has attempted to locate and communicate with Defendant regarding his deposition, the Court finds sanctions against defense counsel unwarranted.  Plaintiffs do not otherwise request sanctions against Defendant.  Thus, no sanctions are awarded.  

Plaintiffs are 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 12^th day of September 2022