Judge: David A. Rosen, Case: 20STCV39629, Date: 2022-12-23 Tentative Ruling
Case Number: 20STCV39629 Hearing Date: December 23, 2022 Dept: E
Hearing Date: 12/23/2022 – 8:30am
Case No: 20STCV39629
Trial Date: 05/15/2023
Case Name: BRIGITTE BERGMAN v. TRICIA HALAMANDARIS
TENTATIVE RULING ON MOTION TO COMPEL DEPOSITION
Moving Party: Defendant, Tricia Halamandaris
Responding Party: Plaintiff, Brigitte Bergman
Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok
Opposition submitted. No Reply Submitted.
RELIEF REQUESTED:
Defendant, Tricia Halamandaris, moves for an order pursuant to CCP §2025.450 compelling Plaintiff, Brigitte Bergman, to attend and testify at oral deposition.
Defendant moves the Court for an order imposing monetary sanctions in the amount of $1,989.95 against Plaintiff for the court reporter costs for the two missed depositions, for the reasonable attorney fees and the cost of this motion incurred by Plaintiff’s refusal to appear for oral deposition, without substantial justification, which constitutes a blatant abuse of the discovery process and therefore warrants the imposition of monetary sanctions against Plaintiff.
BACKGROUND
This action stems from a personal injury action in which Plaintiff alleges Defendant caused an automobile accident driving into Plaintiff’s car.
Defendant alleges that it served by mail and email a notice of taking deposition of Plaintiff on February 11, 2022, with an appearance date of February 24, 2022. Defendant alleges that Plaintiff failed to appear for this deposition. Defendant further alleges that it served on February 25, 2022, via mail and email, a second amended notice of taking deposition with a new deposition date of March 25, 2022. Defendant alleges that Plaintiff failed to appear for this deposition as well. Defendant argues that Plaintiff never served an objection to the deposition notices pursuant to CCP §2025.410.
Plaintiff’s Opposition is titled, “Plaintiff’s Answer and Objection to Defendant’s 4th Demand For Deposition by Plaintiff and To Monetary Sanctions.”
In Opposition, Plaintiff does not cite any legal authority for the basis of its Opposition to the instant motion. Instead, Plaintiff states that she was never given a description of any person for the depositions; Defense counsel never showed his face at the deposition; nobody was at the deposition location; Defense counsel’s cellphone didn’t work; all depositions and oral meetings should be cancelled; and Defendant makes reference to various things that are entirely unrelated to this motion.
LEGAL STANDARD
C.C.P. §2025.450(a) provides, as follows: “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(b) provides, in pertinent part, as follows:
(b) 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, 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.
ANALYSIS
Defendant appears to be basing the instant motion on Plaintiff’s nonappearances for depositions scheduled on February 24, 2022, and March 25, 2022.
As to the February 24, 2022, motion: Defendant appears to be correct that Plaintiff did not serve any objections pursuant to CCP §2025.410. CCP §2025.410 states,
“a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.
(b) If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition. Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.” (CCP §2025.410(a)-(b).)
Here, Plaintiff emailed Defense counsel on February 22, 2022, providing excuses as to why she could not attend the February 24, 2022, deposition – not safe from criminals, no transportation. This email two days before does not appear to be a valid objection because an objection must be made three calendar days before the deposition date.
However, to compel a deposition for nonappearance, under 2025.450(b)(2), the motion shall be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. Technically, the declaration of moving counsel doesn’t state he contacted Plaintiff about her nonappearance, but the declaration states that on February 24, 2022, he emailed Plaintiff to offer to reschedule. (Decl. Kalpakian ¶6.) Further, although the declaration of Kalpakian in the moving papers doesn’t technically state he contacted deponent about the nonappearance, Exhibit C in the moving papers is an email wherein Kalpakian tells Plaintiff she failed to appear for her deposition. So, the declaration requirement doesn’t appear to be met, despite the fact that Defendant technically did contact deponent about the nonappearance – Defendant just didn’t state this in the declaration, Defendant stated it in an email.
As to the March 25, 2022, deposition, Plaintiff appears have again failed to serve valid, timely objections. Plaintiff emailed Defense counsel on March 25, 2022, stating there were two buildings with the same address as the address on the deposition notice, Defense counsel’s cell phone wasn’t working, she didn’t know the name of the party with whom she was to meet, and she got exhausted looking for the building, so she eventually left. Problematic with compelling the deposition based on the March 25, 2022, nonappearance is that Defendant also did not provide a declaration stating that the petitioner contacted the deponent to inquire about the nonappearance. Unlike the exhibits attached in this motion that indicate Defendant emailed Plaintiff about the nonappearance for the February 24, 2022, deposition, there are no exhibits pertaining to the March 25, 2022, deposition that indicate Defendant’s counsel reached out about the nonappearance, nor is there a statement in Defense counsel’s declaration that he contacted deponent to inquire about the nonappearance.
Nevertheless, Plaintiff’s appearance at her deposition should be compelled simply based on the conduct of Plaintiff. Both the moving papers and Plaintiff’s opposition evince clearly improper avoidance by Plaintiff.
Defendant submitted a declaration on 12/20/2022 which details the many attempts Defendant’s counsel has made to try and schedule this deposition with Plaintiff. Defense counsel did contact Plaintiff about Plaintiff’s nonappearance at the second deposition based on the implication that the parties are trying to schedule a new deposition. It is not clear why Defense counsel submitted this declaration on 12/20/2022, although Defense counsel alleges it submitted this declaration based on the Court’s September 20, 2022, Order. However, under CCP §1005(b), “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court.” Therefore, this 12/20/2022 declaration appears to be late.
TENTATIVE RULING: The Motion is denied on the procedural bases discussed above. However, the Court, sua sponte, orders that Plaintiff present herself for deposition by defense at defense counsel’s office, on a date and time mutually agreed upon by the parties and counsel, but no later than January 23, 2023.
Sanctions
If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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. (CCP §2025.450 (g)(1).)
Plaintiff is ordered to reimburse defense counsel for the $1,328.30 in non-appearance fees incurred (Exhibit F to moving papers), but this portion of today’s order is Stayed until the Trial of this matter. The Court awards no other sanctions on this motion.
20STCV39629 Bergman: Plaintiff’s Motion for
Trial Preference is Denied. Movant presented no Declaration in support
of her Motion.