Judge: Audra Mori, Case: 21STCV18433, Date: 2023-02-27 Tentative Ruling

Case Number: 21STCV18433    Hearing Date: February 27, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Rocio Campos (“Plaintiff”) filed this action against Defendants Jose F Escobar Martinez d.b.a. LAF Trucking (“LAF Trucking”) and Jose F Escobar Martinez (“Martinez”) (collectively, “Defendants”) for damages arising out of a motor vehicle accident.

At this time, Plaintiff moves to compel the deposition of each of Martinez and LAF Trucking’s person most knowledgeable (“PMK”).  Defendants oppose both motions.  To date, no replies have been filed. 

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, Plaintiff states that on June 20, 2022, he served a notice of taking each Martinez’s and LAF Trucking’s PMK’s depositions and request for production of documents.  Plaintiff noticed LAF Trucking’s PMK’s deposition for July 27, 2022, and noticed Martinez’s deposition for July 28, 2022.  Plaintiff asserts that Martinez and LAF Trucking’s PMK both failed to appear for their depositions or produce any requested records. 

Plaintiff provides that on September 30, 2022, Plaintiff set a meet and confer correspondence to ascertain why Defendant did not appear for the deposition.  The meet and confer correspondence, attached to each motion as Exhibit C, is an email sent from Plaintiff’s counsel to defense counsel stating in part, “Please advise before close of business on October 3, 2022, as to the reason why Defendants failed to appear for their depositions and produce the requested documents.”  The email shows that approximately nine minutes after it was sent to defense counsel, defense counsel responded, “I had COVID and sent emails regarding my unavailability and proposed new dates to [Plaintiff’s counsel] and the court reporter on 7-25.”  (Ibid.)  Plaintiff does not state that any other meet and confer attempts were made to resolve these issues, nor does Plaintiff state whether Plaintiff’s counsel responded to defense counsel’s reply concerning new dates already being sent to Plaintiff.  In opposition, Defendants aver that defense counsel tested positive for Covid-19 on July 25, 2022, and immediately advised Plaintiff’s counsel that defense counsel would be unavailable for the depositions and proposed new dates.  Defendants assert that defense counsel emailed Plaintiff’s counsel multiple times about rescheduling the depositions, but Plaintiff’s counsel never responded to Defendants’ counsel’s efforts. 

Plaintiff failed to meet and confer adequately as required by CCP § 2025.450(b)(2) prior to filing this motion.  CCP §§ 2016.040 and 2025.450(b)(2) require a good faith attempt at an informal resolution of each issue in the motions.  However, Plaintiff merely sent an email to defense counsel and then ignored Defendants’ multiple efforts to offer new dates for Defendants’ deposition to go forward. 

Therefore, the motions are denied without prejudice.  The parties are ordered to meet and confer to attempt to resolve these issues without judicial intervention.   

As a final note, Plaintiff reserved the hearing for the instant motion as a hearing on a Motion to Compel Further Responses.  However, Plaintiff is clearly not seeking to compel further responses, but rather seeking to compel Defendants’ depositions.  Plaintiff should have reserved the motion as a hearing on a Motion to Compel Discovery (Not “Further Discovery”).  Failing to properly reserve a hearing for a motion to compel manipulates the Court Reservation System. 

Plaintiff’s Counsel is put on notice, and should instruct their staff, that it is inappropriate to intentionally reserve a hearing date for a different type of motion so that, as one example, the motion can be heard sooner.  Plaintiff’s counsel is also put on notice that failure to properly reserve hearings in the future based on the type of motion being heard will result in the matter being taken off calendar. 

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 27^th day of February 2023