Judge: Daniel M. Crowley, Case: 20STCV38998, Date: 2022-09-08 Tentative Ruling

Case Number: 20STCV38998    Hearing Date: September 8, 2022    Dept: 28

Plaintiff Kyle Irwin’s Motion to Compel Defendant Albert Stern’s Deposition

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On October 9, 2020, Plaintiff Kyle Irwin (“Plaintiff”) filed this action against Defendant Albert Stern (“Defendant”) for motor vehicle negligence.

On February 8, 2021, Defendant filed an answer.

On August 9, 2022, Plaintiff filed a Motion to Compel Defendant Albert Stern’s Deposition to be heard on September 8, 2022. On August 25, 2022, Defendant filed an opposition.

Trial is currently scheduled for December 12, 2022.

PARTY’S REQUESTS

Plaintiff requests the Court compel Defendant to appear for a deposition within 20 days of the hearing on this motion. Plaintiff also requests the Court compel Defendant and Defendant’s counsel to pay $4,500.00 in sanctions.

Defendant requests the Court deny the motion.

LEGAL STANDARD

Code of Civil Procedure § 2025.450 allows the Court to compel a party’s appearance and to produce documents. 

“If, after service of a deposition notice, a party to the action… without having served a valid objection… fails to appear for examination, or to proceed with it, or to produce for inspection any document 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 or tangible thing described in the deposition notice.”  A motion 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, electronically stored information, or tangible thing described in the deposition notice.  (2) The motion 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 or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP § 2025.450 provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.

DISCUSSION

In December 2021, Plaintiff requested dates for Defendant's deposition. Defendant’s counsel promised to provide these on January 10, 2022, but never did. On March 14, 2022, Plaintiff’s counsel provided 8 potential days for Defendant’s deposition; they later noticed his deposition for May 17, 2022. On May 16, 2022, Defendant’s counsel informed Plaintiff that they had not confirmed the deposition. Plaintiff subsequently requested more dates, which they never received. On June 14, 2022, Plaintiff noticed the deposition for July 5, 2022; Defendant did not appear for the deposition.

Defendant’s counsel states Defendant is the subject of a conservatorship action and that they recently learned Defendant had a fall, leaving him in an unknown status. Defendant may be presently unable to testify due to this issue. Yet, this recent development does not explain Defense counsel’s failure to cooperate in scheduling Defendant’s deposition sooner.  Moreover, this motion was filed a month ago, and Defense counsel should have an answer now as to the Defendant’s status. 

CONCLUSION

Plaintiff Kyle Irwin’s Motion to Compel Defendant Albert Stern’s Deposition is GRANTED.  Defendant is to appear for his deposition by October 7, 2022.  In addition, Defendant’s counsel is sanctioned $810 (3 x $250 = $60).  The sanctions are due by October 7, 2022. 

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.