Judge: Audra Mori, Case: 20STCV13091, Date: 2022-12-08 Tentative Ruling

Case Number: 20STCV13091    Hearing Date: December 8, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

This action arises out of an alleged slip-and-fall incident that occurred in 2018.  Susan Singleton (Plaintiff) filed this action against Residence Inn by Marriott, LLC (Defendant), erroneously sued as Marriott International, Inc. on April 3, 2020, alleging one cause of action for premises liability.

Plaintiff deposed Defendant’s person most knowledgeable (PMK) on July 28, 2021, in connection with eight categories of testimony for which Defendant provided General Manager Mir Said (Said) as the PMK.  (Schwalbach Decl., Exh. 1.) On May 17, 2022, Plaintiff served a Second Notice of Deposition on Defendant’s PMK for a deposition noticed to occur on May 27, 2022, that would address ten categories of testimony that were distinguishable from those addressed in the July 28, 2021 deposition, and also included 64 Requests for Production of Documents.  (Schwalbach Decl. ¶4, Exh. 2.)  On May 20, 2022, Defendant, through counsel Manning & Kass, objected to certain categories of testimony set forth in this second Notice of Deposition, but agreed to produce a PMK for certain categories of testimony.  (Schwalbach Decl., Exh. 3.)  On May 24, 25, and 26, 2022, the parties’ counsel communicated regarding rescheduling the PMK deposition, with Defendant's counsel disputing that a second PMK deposition was necessary.  (Schwalbach Decl. ¶¶7-9, Exhs. 4, 5, 6.)  On May 26, 2022, Defendant obtained an ex parte trial continuance, continuing the trial from July 1, 2022, to June 16, 2023. Plaintiff filed the instant motion on October 5, 2022. 

In light of the continued trial date affording more time to meet and confer on the disputed categories of testimony, Plaintiff did not take a notice of non-appearance on May 27, 2022. (Schwalbach Decl. ¶11.)  On July 20, 2022, Plaintiff’s counsel sent meet and confer correspondence to Defendant and thereafter followed up; however, due to illnesses and a change in attorneys at Manning & Kass, Defendant’s counsel delayed in meeting and conferring with Plaintiff’s counsel, and ultimately did not successfully meet and confer and/or provide dates for rescheduling the PMK deposition before September 16, 2022, a date Defendant’s counsel indicated a response would be provided.  (Schwalbach Decl. ¶¶12-20, Exhs. 7-12.)  Plaintiff’s counsel declares that as of the date of preparing the motion, Defendant had provided no dates for the noticed PMK deposition.  (Schwalbach Decl. ¶21.)   

Plaintiff filed this motion to compel the deposition of Defendant’s PMK on October 5, 2022.  The Court notes that after the motion was filed, on October 17, 2022, Defendant retained new counsel. The parties filed a Joint Statement on November 23, 2022, indicating that they had made progress related to their discovery dispute.  Defendant filed an opposition on November 23, 2022, and Plaintiff filed a reply on December 1, 2022.

Trial is currently set for June 16, 2023.

2. Motion to Compel Deposition

C.C.P. §2025.450(a) provides that, “[i]f, 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, electronically stored information, or tangible thing described in the deposition notice.” 

C.C.P. §2025.410(a), provides that, “[a]ny party served with a deposition notice that does not comply with [the notice requirements in C.C.P. §§2025.210 through 2025.290] waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”

C.C.P. §2025.450(b)(1) provides that, “[t]he motion [to compel deposition] 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.”

C.C.P. §2025.450(b)(2) requires that the motion to compel deposition be accompanied by a meet and confer declaration, 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.

Though the Court understands Plaintiff’s frustration with the events to date, Plaintiff’s motion compelling the deposition of Defendant’s PMK is premature and not sufficiently supported.  Plaintiff submitted no evidence suggesting the PMK failed to appear for examination and/or failed to produce for inspection any document described in the deposition notice at a scheduled deposition prior to filing the instant motion.  As noted above, Plaintiff did not take a notice of non-appearance on the noticed deposition date and instead opted to meet and confer regarding the categories.  In addition, at the time Plaintiff filed the motion, Defendant had indicated its willingness to produce a PMK for a second deposition.  As discussed above, the parties’ counsel attempted to meet and confer, but were never able to substantively discuss Defendant’s asserted objections to the Notice of Deposition and whether its assertion that it need not produce a PMK for a second deposition had merit prior to filing the motion.

In opposition, Defendant submitted evidence that its new counsel, Lewis Brisbois Bisgaard & Smith LLP (Lewis Brisbois), disagrees with Defendant’s former counsel and is currently working with Plaintiff’s counsel to resolve this discovery dispute.  (Thornburn Decl. ¶¶ 5-6.)  Specifically, Defendant’s new counsel asserts that Defendant now agrees that there are no objections to categories set forth in the May 17, 2022 Notice of Deposition. In reply, Plaintiff concedes that the parties have agreed the ten categories of testimony are distinct and Defendant will produce a deponent given Defendant has already identified PMKs for categories 1 through 7 and is in the process of identifying PMKs for categories 8 through 10.  (Reply, p. 2.)  Plaintiff's assertion that she is agreeable to producing witnesses by the end of January, and producing documents at least one week before, suggests the parties are still in the process of scheduling a date for the deposition.  (Reply, p. 3.)  Here, Defendant is not refusing to provide PMKs for the deposition and is cooperating with Plaintiff in rescheduling the deposition. There is also insufficient evidence suggesting Defendant will not produce documents at the deposition responsive to the Requests for Production in the Notice of Deposition to warrant compelling production of documents at this time.  Further, Plaintiff does not set forth specific facts showing good cause for each category of documents requested.  (C.C.P. §2025.450(b)(1).)

Based on the foregoing, Plaintiff’s motion to compel the deposition of Defendant’s PMK is denied as premature. 

3. Sanctions Request

In light of the Court’s ruling on the motion, Plaintiff’s request for sanctions is denied.  (C.C.P. §2025.450(g)(1) [“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…”].)  As discussed above, the parties were in the course of meeting and conferring regarding deposition dates at the time Plaintiff filed the instant motion. Defendant did not refuse to produce its PMK so as to make the filing of the instant motion necessary.  In addition, while the noticed date of the PMK deposition had passed, Plaintiff did not submit evidence that Defendant did not appear at the deposition, given at that point Plaintiff had already agreed that the deposition would need to be rescheduled. 

Based on the foregoing, Defendant’s request for monetary sanctions is denied.

4. Conclusion

Accordingly, Plaintiff’s motion to compel the deposition of Defendant’s person most knowledgeable is DENIED.

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 8^th day of December 2022