Judge: David B. Gelfound, Case: 23CHCV00612, Date: 2025-03-11 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assistant in North Valley Department F49, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2249.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org.
All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies). 

Case Number: 23CHCV00612    Hearing Date: March 11, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL PLAINTIFF TO APPEAR FOR DEPOSITION

Motion filed: 12/3/24

MOVING PARTY: Defendant Costco Wholesale Corporation

RESPONDING PARTY: None.

NOTICE: OK.

RELIEF REQUESTED: An order from this Court to compel Plaintiff to appear for his deposition on a mutually agreeable date.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This action arises from personal injuries and damages that Plaintiff allegedly sustained in a motor vehicle incident that occurred on December 8, 2021.

On March 3, 2023, Plaintiff Eladio Fortunato Lorenzo (“Plaintiff” or “Lorenzo”) filed the Complaint against Defendants Costco Wholesale Corporation (“Costco”), Ramon Alderete (“Alderete”), Does 1 to 100, alleging (1) general negligence, and (2) motor vehicle negligence. Subsequently, Costco and Alderete filed their Answers on August 2, 2023, and October 25, 2023, respectively.

On December 3, 2024, Costco filed the instant Motion to Compel Plaintiff to Appear for Deposition (the “Motion”).

No Opposition papers have been received by the Court.

ANALYSIS

To compel the deposition of a party to an action or its officer, director, managing agent, or employee, the deposing party need only serve a notice in compliance with Code of Civil Procedure section 2025.240. (Code Civ. Proc., § 2025.280, subd. (a).) Nothing further is needed. If, after service of the deposition notice, the deponent fails to appear “without having served a valid objection under Section 2025.410 . . .” the deposing party may move for an order compelling the deponent’s attendance and testimony. (Id., § 2025.450, subd. (a).)

A.    Procedural Requirements

1.      Meet and Confer

"Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue," including by rescheduling.¿(Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124.)

Here, Costco’s counsel, John K. Flock (“Flock”), states that on May 2, 2024, Costco served Plaintiff with the notice of taking deposition and request for production of documents, setting Plaintiff’s deposition for May 24, 2024. (Flock Decl. ¶ 6.) On May 14, 2024, Plaintiff served an objection to the deposition notice, stating that his counsel was not available on the noticed deposition date. (Ibid.) On May 17, 2024, Costco’s counsel sent a follow-up email, reminding Plaintiff to provide alternate dates for deposition. (Id. ¶ 7.) On May 24, 2024, Costco served an amended notice of deposition on Plaintiff with the deposition set for June 10, 2024. (Id. ¶ 8.) On July 24, 2024, Costco served a third amended notice of deposition, setting the deposition for August 20, 2024, which was later amended to September 20, 2024. (Id. ¶ 10.) On September 19, 2024, Costco’s counsel sent an email to Plaintiff’s counsel, confirming the deposition for the following day and providing a Zoom link. (Id. ¶ 11.) On the same day, Plaintiff’s counsel informed Costco’s counsel that Plaintiff was recently hospitalized and had difficulty speaking. Consequently, the parties agreed to take the deposition off calendar. (Id. ¶ 11.) On September 20, 2024, Costco served a fifth amended notice of deposition and request for production of documents, setting the deposition for October 7, 2024, which was later reset for November 5, 2024. (Id. ¶ 12.) On November 4, 2024, Plaintiff served an objection to the last notice, stating that Plaintiff was not available on the date unilaterally set by Costco and offering to provide the next available deposition date via email. (Id. ¶ 13.) However, Plaintiff’s counsel had not provided any available dates for Plaintiff’s deposition by the time of filing of the Motion.

Flock attests that the parties have met and conferred multiple times, via email and telephone. Unfortunately, the parties were unable to reach an agreement regarding the Plaintiff’s deposition. (Flock Decl. ¶ 14.)

Based on the above records, the Court finds that Costco has made good faith attempts to reschedule and resolve issues raised in the instant Motion.

B.     Motion to Compel Deposition of Plaintiff

Code of Civil Procedure section 2025.280 subdivision (a) provides that service of a deposition notice “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, electronically stored information, or tangible thing for inspection and copying.”

An objection under Code of Civil Procedure section 2025.410 is one that is written, made “at least three calendar days prior to the date for which the deposition is scheduled,” and pertains to an “error or irregularity” with the notice itself. (Code Civ. Proc., § 2025.410, subd. (a).) The procedure for a deponent who seeks to narrow the scope of a discovery request is to move for a protective order. (Id., § 2025.420, subd. (a).)

Here, Plaintiff failed to appear for the noticed deposition on November 5, 2024, as set forth in the sixth amended notice of deposition and request for production of documents. Plaintiff objected solely on the ground of unavailability without providing any alternative dates – despite Costco’s repeated efforts to accommodate by amending the deposition date six times. Moreover, objections alone do not stay the taking of the deposition. To do so, the objecting party should move to quash the deposition notice and stay the taking of the deposition. (See Code Civ. Proc., § 2025.410, subd. (c), [“In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice.”])

Accordingly, Costco is entitled to the deposition of Plaintiff.

The Court therefore GRANTS the Motion.

CONCLUSION

Defendant Costco Wholesale Corporation’s unopposed Motion to Compel Plaintiff to Appear for Deposition is GRANTED.

Plaintiff Eladio Fortunato Lorenzo is ordered to attend and testify at a deposition, and produce documents as requested in the Sixth Amended Notice of Deposition, dated September 20, 2024, within 30 days of this order.

Moving party to give notice.