Judge: Audra Mori, Case: 20STCV45421, Date: 2023-01-17 Tentative Ruling

Case Number: 20STCV45421    Hearing Date: January 17, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Mohammadali Tahouri (“Plaintiff”) filed this action against Defendant Jeffrey Ryan Stern (“Defendant”) for damages arising from a motor vehicle accident. 

At this time, Plaintiff moves to compel Defendant’s deposition.  Defendant opposes the motion, and Plaintiff filed a reply.

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.

Here, Plaintiff asserts that Defendant’s deposition has been set for multiple dates, but Defendant has not appeared for his deposition.  Plaintiff states that Defendant’s deposition was previously scheduled for August 5, 2022, which was provided and confirmed by defense counsel, but Counsel did not appear, and a certificate of non-appearance was taken.  (Mot. Exh. 1.)  Plaintiff provides that defense counsel then provided the date of September 30, 2022, for Defendant’s deposition, but the deposition was later cancelled with defense counsel indicating that he was unsure when Defendant would be available for his deposition.  Plaintiff avers that Plaintiff has attempted to meet and confer with Defendant, but Defendant has failed to appear for deposition. 

In opposition, Defendant contends that he has responded to other forms of discovery, including written discovery, and that he was unable to appear for the August 5, 2022 deposition because he was ill.  Defendant further asserts he was unable to appear for the September 30, 2022 deposition because he was out of state attending to personal matters.  Defendant contends that sanctions are unwarranted. 

In reply, Plaintiff contends that due to Defendant’s failure to appear for his deposition, a court order compelling Defendant to appear is required.  This point is well taken.  Defendant does not dispute that his deposition was last noticed for August 5, 2022, and September 30, 2022, but Defendant failed to appear for each.  Further, although Plaintiff has attempted to meet and confer with Defendant, Defendant last indicated he was uncertain when he would be available for deposition. 

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

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.  To the extent that Plaintiff requests sanctions against Defendant in the reply, Plaintiff does not identify Defendant as a person against whom sanctions are sought.  (CCP § 2023.040 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”].) 

Rather, Plaintiff’s notice of motion seeks sanctions against defense counsel only.  However, Defendant’s counsel indicates that defense counsel has otherwise attempted to defend this case and cooperate with Plaintiff.  Defense counsel attests that he was informed on the morning of August 5, 2022, that Defendant was ill and not able to proceed his deposition that day, and that defense counsel was notified before the September 30, 2022 deposition that Defendant was not able to appear for his deposition.  Given the circumstances, the Court finds the imposition of sanctions on defense counsel would be unjust.  Because no sanctions are requested against Defendant, no sanctions are awarded.

Defendant 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 17^th day of January 2023