Judge: Craig Griffin, Case: Gonzales v. On, Date: 2022-11-28 Tentative Ruling

The motion by cross-complainant WFG National Title Insurance Co. (“WFG”) for an order compelling cross-defendant Jacqueline Trinh On to appear for her deposition is DENIED, without prejudice.

Cross Defendant On failed to appear for her deposition on October 5, 2022.  This specific date and time was agreed to by counsel. There was no objection to the deposition.  An affidavit of non-appearance by the court reporter was submitted in support of the motion showing that cross-defendant On did not appear for her deposition on October 5, 2022. (Exh. 8 to Ramos decl.)  WFG moves to compel the deposition pursuant to CCP §2025.450(a).

Code of Civil Procedure §2025.450(b) states that “A motion made under subdivision (a) shall comply with both of the following: 

(1)The motion shall set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the deposition notice…

(2) the motion shall be accompanied by a meet and confer declaration under Section 2016.40, 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.”

While the motion contains a declaration explaining the meet and confer that went into scheduling the deposition, it stops there.  The declaration does not state “that the petitioner has contacted the deponent to inquire about the nonappearance.”  The motion also does not contain specific facts showing good cause justifying production of documents.

CCP §2025.450(b) uses the word “shall” and is therefore mandatory.  Accordingly, the failure to comply with these requirements is fatal to the motion.

Moving party is ordered to give notice of this ruling.