Judge Audra Mori, Case 21STCV04052 2023-02-07 Tentative Ruling

Plaintiff Laura Garcia Ortiz (“Plaintiff”), et al., filed this action against defendants Benito Leon-Cazarez and Prestige Home Improvements, Inc. (collectively, “Defendants”) for damages arising out of a motor vehicle accident.

Defendants, at this time, move for an order compelling Plaintiff to appear for and produce documents at her deposition. Plaintiff opposes the motion, and Defendants filed a reply.

Defendants assert that they served a deposition notice on Plaintiff on November 2, 2021, setting Plaintiff’s in-person deposition for December 23, 2021 at 10:00 a.m. Defendants provide that two days before the scheduled deposition, Plaintiff, through her counsel, noticed her own deposition to be conducted remotely for the same date and time that Defendants had noticed. Defendants argue that Plaintiff was attempting to obstruct Defendants’ ability to depose Plaintiff in person and that Plaintiff did not provide sufficient notice. Defendants state that Plaintiff’s counsel then proceeded with the deposition of his own client, and that despite meeting and conferring, Plaintiff now refuses to appear for deposition with Defendants.

In opposition, Plaintiff argues that Defendant’s deposition notice did not provide any information concerning the arrangements for the in-person deposition, such as how many people would be present or who would be appearing. Plaintiff contends that she attempted to meet and confer with Defendants regarding an in-person versus remote deposition, but the parties came to an impasse, so in order to protect Plaintiff’s health, Plaintiff’s counsel scheduled Plaintiff’s remote deposition for December 23, 2021. Plaintiff asserts she appeared for the remote deposition that day, so Plaintiff should not be ordered to appear for a second deposition pursuant to CCP § 2025.610(a).

In reply, Defendants aver that Plaintiff failed to appear for her in-person deposition properly noticed by Defendants, and that Plaintiff did not serve a valid objection to the deposition notice. Defendants assert that instead, Plaintiff’s counsel set Plaintiff’s deposition for the same day and time Defendants’ noticed Plaintiff’s deposition with two days’ notice. Defendants contend that Plaintiff is attempting to use this gamesmanship to preclude Defendants from deposing Plaintiff.

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, on November 2, 2021, Defendants served a notice of deposition of Plaintiff setting Plaintiff’s deposition for December 23, 2021 at 10:00 a.m. (Mot. Exh. 1.) On December 16, 2021, Plaintiff served an objection to Defendants’ deposition notice asserting in part, “Plaintiff and her Counsel will appear remotely on the day and time of the deposition.” (Id. at Exh. 2.) Plaintiff also asserted various “general objections” to the notice. (Id.) Thereafter, after meeting and conferring about Plaintiff’s deposition, (Mot. Exh. 3), on December 21, 2021, Plaintiff’s counsel electronically served a noticed of taking Plaintiff’s remote deposition for the same date and time that Defendants’ noticed Plaintiff’s deposition. (Id. at Exh. 4.) Defendants objected to Plaintiff’s deposition notice setting her own deposition under CCP § 2025.270, (Id. Exh. 5), but Plaintiff proceeded with her remote deposition without Defendants present. (Opp. Exh. 4.) Defendants then served an amended deposition notice on Plaintiff setting Plaintiff’s deposition for June 29, 2022, but Plaintiff objected on the grounds that she had already been deposed.

The evidence, thus, shows that Defendants properly served a deposition notice on Plaintiff setting Plaintiff’s deposition for December 23, 2021. The objecting party has the burden to justify objections asserted, (See Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95), and Plaintiff does not justify any of her objections asserted to Defendants’ deposition notice. Plaintiff does not address any of her general objections in her opposition, and Plaintiff does not cite any authority holding that a party may refuse to appear for a properly noticed deposition based on their refusal to appear in-person. Indeed, rules enacted during Covid call for in person depositions of parties, absent a protective order.[1] As Defendants argue, the Court’s records show that Plaintiff never sought a protective order concerning the in-person deposition notice.

Instead, Plaintiff’s counsel chose to notice his own client’s deposition for the same date and time that Defendants had noticed Plaintiff’s deposition and refused to appear for the deposition as noticed by Defendants. The Court understands Plaintiff’s general concerns with Covid. However, while Plaintiff’s counsel argues that Plaintiff’s counsel unilaterally noticed Plaintiff’s remote deposition to protect Plaintiff’s health, Plaintiff provides no evidence now showing that Plaintiff’s health required or benefited from a remote deposition. Rather, Plaintiff’s counsel’s questionable conduct was clearly done to attempt to circumvent Defendants’ deposition of Plaintiff. Furthermore, even if Plaintiff’s improperly self-noticed deposition satisfied CCP § 2025.610(a), Defendants establish good cause for seeking their own deposition of Plaintiff.

Therefore, because the evidence shows that Defendants properly noticed Plaintiff’s deposition and Plaintiff has failed to appear for such, Defendants’ motion to compel Plaintiff’s deposition is granted. Plaintiff is ordered to appear for deposition at a date, time, and location to be noticed by Defendants. Defendants must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service). If Defendants proceed with an in-person deposition, they must comply with the Code and all Rules of Court. (See e.g., CCP § 2025.310(b), Cal Rules of Court, Rule 3.1010.)

To the extent Defendants are seeking to compel Plaintiff to produce the documents demanded in the deposition notice, Defendants 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, Defendants’ 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, after Defendants properly noticed Plaintiff’s deposition, Plaintiff’s counsel improperly noticed his own client’s deposition for the same date and time. Thus, sanctions are warranted against Plaintiff’s counsel. Defendants are awarded two hours for preparing the motion, one hour for preparing the reply, and one hour for appearing at the hearing all at the rate of $200 per hour, for a total attorney fees award of $800. Further, Defendants are awarded the $60 motion filing fee as costs.

Sanctions are imposed against Plaintiff’s attorney of record only. Plaintiff’s counsel is ordered to pay sanctions to Defendants, by and through their attorney of record, in the total amount of $860, within twenty days.

Hon. Audra Mori

Judge of the Superior Court

[1] Regarding the taking of depositions, California Rules of Court, Rule 3.1010(a)(3) provides, “Any party or attorney of record may be physically present at the deposition at the location of the deponent with written notice of such appearance served by personal delivery, email, or fax, at least five court days before the deposition, and subject to Code of Civil Procedure section 2025.420…” (Emphasis added.)