Judge: Daniel M. Crowley, Case: 19SMCV02157, Date: 2023-04-18 Tentative Ruling
Case Number: 19SMCV02157 Hearing Date: April 18, 2023 Dept: 207
Background
Legal Standard
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.
(C.C.P. § 2025.450(a).)
The motion must “be accompanied by a meet and confer declaration under Section 2016.040, 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.” (C.C.P. § 2025.450(b)(2).)
Analysis
Plaintiff was previously deposed, but not for the full seven-hours permitted by the Code of Civil Procedure. Defendants move to compel the continued deposition of Plaintiff. Defendants have made several efforts to take Plaintiff’s deposition, with the date for that deposition repeatedly being moved or rescheduled. Eventually, Defendants served Plaintiff with a notice of deposition set to take place on March 14, 2023. Plaintiff did not appear for this deposition.Plaintiff does not dispute these facts or otherwise claim Defendants are not entitled to complete his deposition. Plaintiff asserts he did not appear for his March 14 deposition due to an unspecified illness. (Dreamer Decl. at ¶3.) Plaintiff also requests the Court “give a range of dates” for his continued deposition to give him time to recover from his illness and obtain new counsel, though Plaintiff provides no estimation as to how much time he requires to do so. As it is uncontested that Defendants are entitled to a further deposition of Plaintiff, their motion to compel is GRANTED and the Court orders Plaintiff to sit for deposition within 30 days of the date of this order.In their reply, Defendants for the first time also request the Court issue an order granting them an additional three hours to conduct Plaintiff’s deposition in addition to the three hours of deposition already taken of Plaintiff. It is the general rule that “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) This is precisely the situation here. Defendants’ requested relief goes beyond the scope of their initial moving papers, and by raising this request for the first time in their reply, Plaintiff has been denied the opportunity to respond to it. The Court also finds Defendants’ request to be premature. If, after the conclusion of Plaintiff’s seven hours of deposition, Defendants need more time to depose Plaintiff they can request an Informal Discovery Conference to explain why that time is necessary.
Conclusion
Defendants’ motion to compel Plaintiff’s deposition is GRANTED in part and denied in part. Plaintiff is ordered to sit for his continued deposition within 30 days of the date of this order. Defendants’ request to extend the time of Plaintiff’s deposition is DENIED without prejudice.