Judge: Deborah C. Servino, Case: 30-2020-01162608, Date: 2023-01-06 Tentative Ruling

Defendants Bidna & Keys, APLC and Richard Keys’ motion to compel deposition is denied as premature.

Plaintiff’s request for judicial notice is denied as irrelevant.  Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) 

Defendants bring this motion pursuant to Code of Civil Procedure section 2025.450, which states: “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 . . . 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 . . .”

Here, Defendants served a notice of deposition on Plaintiff on April 1, 2022, which noticed an in-person deposition for April 13, 2022. (Klier-Erlich Decl., at ¶ 5 & Exh. C.) However, defense counsel concedes that the deposition was taken off-calendar on April 8, 2022. (Klier-Erlich Decl., at ¶ 6 & Exh. D.)  Plaintiff’s counsel indicates that the deposition was taken off calendar “prior to the date on which our office would have served an objection to the deposition notice.” (Walder Decl., at ¶ 5.)  While defense counsel indicates they “agreed to take the deposition off calendar with the understanding that it would be re-set on a mutually agreed upon date,” and further indicates they “made numerous attempts to reset the date for the deposition to no avail,” (Klier-Erlich Decl., at  ¶¶ 7-8), counsel does not declare that a deposition date was subsequently noticed or that Plaintiff failed to appear.  A necessary prerequisite to a motion brought pursuant to Code of Civil Procedure section 2025.450 has not occurred.  Consequently, the motion is denied.

Within 30 days of the notice of the ruling, Defendant Bidna & Keys APLC is ordered to pay sanctions to Makarem & Associates APLC in the amount of $577.50. (Code Civ. Proc., § 2025.420, subd. (h).) 

Finally, counsel are referred to the Orange County Bar Association’s Civility Guidelines, which can be found on this Court’s website under the Local Rules of Court tab (Civility_Guidelines.pdf (occourts.org)).  “‘It is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law.’”  (Findleton v. Coyote Valley Band of Pomo Indians (2021) 69 Cal.App.5th 736, 763 [quoting People v. Chong (1999) 76 Cal.App.4th 232, 243]; see In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537.)  “‘Indeed, unwarranted personal attacks on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct.’” (Findleton v. Coyote Valley Band of Pomo Indians, supra, 69 Cal.App.5th at p. 763.) 

Plaintiff shall give notice of the ruling.