Judge: Daniel M. Crowley, Case: 21STCV28720, Date: 2023-01-19 Tentative Ruling

Case Number: 21STCV28720    Hearing Date: January 19, 2023    Dept: 28

Defendant Stater Bros. Markets’ Motion to Compel Deposition of Plaintiff Oliver Pozo

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

BACKGROUND

On August 4, 2021, Plaintiff Oliver Pozo (“Plaintiff”) filed this action against Defendant Stater Bros. Markets (“SBM”) and John Doe (“Doe”) for assault, battery, negligent, negligent hiring, training and supervision, intentional infliction of emotional distress and negligent infliction of emotional distress.

On January 4, 2022, SBM filed an answer and a Cross-Complaint against Cross-Defendant Maplebear Inc. (“Instacart”) for breach of contract, breach of covenant of implied good faith and fair dealing, equitable indemnity, contribution and declaratory relief.

On September 9, 2022, SBM filed the First Amended Cross-Complaint. On October 24, 2022, Instacart filed an answer.

On November 3, 2022, SBM filed a Motion to Compel Plaintiff Oliver Pozo's Deposition to be heard on January 19, 2023. On January 5, 2023, Plaintiff filed an opposition. On January 13, 2023, SBM filed a reply.

Trial is currently scheduled for February 1, 2023.

PARTY’S REQUESTS

SBM requests the Court compel Plaintiff to appear for his deposition. SBM also requests the Court impose sanctions totaling $2,600.00 on Plaintiff.

Plaintiff requests the Court deny the motion and impose sanctions of $3,375.00 on SBM.

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

SBM originally noticed Plaintiff’s deposition for August 9, 2022; Plaintiff’s counsel objected on the basis that counsel was unavailable. Counsel indicated he would be available on August 4, 2022, and parties scheduled the deposition for that date. Approximately 1 week prior, counsel indicated again they would be unavailable. Plaintiff indicated they would only appear for a zoom deposition, while SBM requested an in-person deposition. SBM served a notice for September 15, 2022, which Plaintiff’s counsel subsequently rejected due to scheduling conflicts, despite indicating this date was acceptable previously. SBM refused to the take the deposition off calendar; Plaintiff did not appear for his deposition.

In reviewing the briefs submitted, the Court does not find any provided reason as to why the deposition must be taken in person. Given the ongoing COVID-19 pandemic, the Court finds it reasonable for both Plaintiff and Plaintiff’s counsel to wish to limit their exposure to others—Plaintiff's counsel’s appearance is not in opposition of a general desire to limit potential exposure to COVID-19. SBM did not indicate that any part of their deposition required Plaintiff appear in person.

However, Plaintiff’s counsel routinely provided dates and then subsequentially cancelled said dates due to scheduling conflicts. The Court does not find that either party made a good faith attempt to schedule Plaintiff’s deposition, but SBM is entitled to conduct reasonable discovery. The Court grants the motion, ordering Plaintiff to appear for a remote deposition within 30 days of the hearing on the motion.

Based on the behavior of both parties, the Court does not impose sanctions at this time. Both parties failed to diligently and in good faith seek to complete discovery in a timely manner, and thus neither is entitled to sanctions due to the other’s misuse of the discovery process.

CONCLUSION

Defendant Stater Bros. Markets’ Motion to Compel Deposition of Plaintiff Oliver Pozo is GRANTED. Plaintiff is ordered to appear for a video deposition within 30 days of the hearing on the motion.

Defendant Stater Bros. Markets’ Request for Sanctions is DENIED.

Plaintiff Oliver Pozo’s Request for Sanctions is DENIED.

            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.