Judge: Daniel M. Crowley, Case: 22STCV05366, Date: 2023-08-21 Tentative Ruling

Case Number: 22STCV05366    Hearing Date: March 25, 2024    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Toyota Motor Sales, U.S.A., Inc.’s motion to compel the deposition of Plaintiff Omar Hernandez Santiago is granted.  Plaintiff is ordered to appear for deposition and produce documents within 15 days of this ruling.

Defendant’s request for sanctions against Plaintiff is denied.

Plaintiff’s request for sanctions against Defendant is denied.

           Defendant Toyota Motor Sales, U.S.A., Inc. (“TMS”) (“Defendant”) moves to compel the deposition of Plaintiff Omar Hernandez Santiago (“Santiago”) (“Plaintiff”) to appear for deposition and produce documents and things within fifteen (15) days of this Court’s ruling.  (Notice of Motion, pgs. 1-2; C.C.P. §§2025.280(a), 2025.450; Gov. Code §68607.)

           Meet and Confer

A motion to compel a deposition must be accompanied by a declaration stating facts showing “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (C.C.P. §§2016.040, 2025.480(b).)

Defendant’s counsel declares that along with the deposition notice on January 20, 2024, she sent a meet and confer letter requesting for alternative dates if the unilaterally scheduled date did not work for Plaintiff and/or his attorneys.  (Decl. of Yao ¶6, Exh. C.)  Defendant’s counsel declares that Plaintiff’s counsel has ignored all of Defendant’s meet and confer correspondences.  (Decl. of Yao ¶11.)   Defendant’s counsel’s declaration does not indicate if she attempted to meet and confer with Plaintiff’s counsel by telephone.  Defendant’s counsel’s declaration does not substantially comply with the requirements of C.C.P. §2016.040.  Regardless, the Court in its discretion will consider Defendant’s motion.

Background

On March 17, 2022, Defendant served a notice for the deposition of Plaintiff set for March 30, 2022, and Plaintiff objected to the deposition notice the following day.  (Decl. of Yao ¶2, Exh. A.)  

On July 8, 2022, Defendant filed a Motion to Compel Arbitration which was granted on January 4, 2023.  (Decl. of Yao ¶3.)  Plaintiff never initiated arbitration and then filed a Motion for Reconsideration of the Court’s January 4, 2023, Order three months later.  (Decl. of Yao ¶4.)  Plaintiff’s Motion for Reconsideration was not heard until September 28, 2023, wherein this Court reversed its prior ruling and the instant case has returned to state court.  (Decl. of Yao ¶4.)

On January 20, 2024, Defendant served an amended notice of deposition set for February 20, 2024.  (Decl. of Yao ¶5, Exh. B.)  Having received no objections to the amended deposition, on February 16, 2024, Defendant sent the deposition link to Plaintiff’s counsel.  (Decl. of Yao ¶7, Exh. D.)  On the date of the deposition, February 20, 2024, after waiting for five minutes with no one appearing, Defendant’s counsel e-mailed Plaintiff’s counsel to inquire when Plaintiff and his counsel would appear.  (Decl. of Yao ¶8.)  After ten minutes past the scheduled start time, Defendant’s counsel called Plaintiff’s counsel and left a voice message.  (Decl. of Yao ¶9.)  After fifteen minutes, Plaintiff still had not appeared and the court reporter took a notice of non-appearance.  (Decl. of Yao ¶10, Exh. E.)

Defendant filed the instant motion on February 27, 2024.  Plaintiff filed his opposition on March 13, 2024.  Defendant filed its reply on March 18, 2024.

           Discussion

C.C.P. §2025.280(a) provides, in part, “[t]he service of deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action . . . to attend and to testify, as well as to produce any document or tangible thing for inspection and copying.”  (C.C.P. §2025.280(a).)

C.C.P. §2025.450 states, in pertinent part, as follows:

(a) If, after service of a deposition notice, a party to the action . . . , 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, . . . 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, . . .  described in the deposition notice.

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document . . . 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 . . . described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

(C.C.P. §2025.450.)

           The Court grants Defendant’s motion pursuant to C.C.P. §2025.450 and orders Plaintiff to appear for deposition and produce documents and things within fifteen (15) days of this Court’s ruling.  Plaintiff was properly served with two deposition notices and failed to appear for a properly noticed deposition.

           Accordingly, Defendant’s motion is granted.

Sanctions

Defendant’s request for sanctions against Plaintiff is denied for lack of proper notice.  Defendant’s request for sanctions only appears in its reply brief and was not included in the initial notice of its motion.

Plaintiff’s request for sanctions against Defendant is denied.

Conclusion

Defendant’s motion to compel is granted.  Plaintiff to appear for deposition with 15 days of this ruling.

Defendant’s request for sanctions against Plaintiff is denied.

Plaintiff’s request for sanctions against Defendant is denied.

Moving Party is to give notice of this ruling.

Dated:  March _____, 2024