Judge: Deborah C. Servino, Case: 30-2021-01225172, Date: 2023-07-28 Tentative Ruling

Defendant Bath and Body Works LLC ’s unopposed motion to compel the deposition of Plaintiff Barbara Vasquez Kunkel, is granted.

Legal Standard

Under Code of Civil Procedure section 2025.450, subdivision (a), a party that noticed a deposition may move for an order compelling the deponent’s attendance if the deponent had been served with a deposition notice but failed to appear for the deposition “without having served a valid objection under Section 2025.410.” (Code Civ. Proc., § 2025.450, subd. (a).) A written objection to a deposition notice must be served at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) When the deponent has failed to attend the deposition and produce the documents, ESI, or things described in the deposition notice, the motion must instead be accompanied by a declaration stating that the attorney for the party making the motion has contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).)

Merits

The parties negotiated and agreed to move Plaintiff’s deposition several times. (Razma Decl., at ¶¶ 5-6, Exhs. A, B.)  On February 2, 2023, Defendant served a third amended notice of deposition of Plaintiff, scheduling Plaintiff’s deposition for February 16, 2023. (Razma Decl., Exh. D.)

Plaintiff did not object to this deposition.  Defendant retained a court reporter for this deposition.  On February 16, 2023, Defendant was ready to conduct this deposition. Plaintiff’s counsel also appeared for this deposition, however, Plaintiff did not appear. (Razma Decl., at ¶ 7.)   As a result of this non-appearance, Defendant incurred court reporter fees in the amount of $985.00. (Razma Decl., Exh. D.)

On February 16, 2023, Plaintiff’s counsel informed defense counsel that they were having difficulties communicating with their client. (Plaintiff’s counsel stated that Plaintiff was requesting that this deposition be continued for thirty days. Razma Decl., at ¶ 8.)  In accordance with this request, on March 9, 2023, Defendant served a fourth amended notice of deposition of Plaintiff, scheduling Plaintiff’s deposition for March 30, 2023. (Razma Decl., Exh. F.)

Plaintiff did not object to this deposition and Defendant retained a court reporter for this deposition. The day before this deposition was scheduled to take place, and after it was too late to cancel the court reporter, Plaintiff’s counsel sent email correspondence to defense counsel. This correspondence informed defense counsel that plaintiff again would not be appearing for the March 30, 2023 deposition. (Razma Decl., at ¶ 9.)  This correspondence further stated that Plaintiff’s counsel had filed a motion to be relieved as counsel in this matter, and stated that he would be appearing at the deposition to make a statement on the record regarding Plaintiff’s failure to appear. (Razma Decl., Exhs. G and H.)

The lack of a meet and confer effort after the second non-appearance is not detrimental to the motion. Implicit in this statute is a requirement that the attorney making the inquiry must listen to the reasons offered for the nonappearance and make a good-faith effort to resolve the issue.  (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1123–1124 [sanctions were upheld against attorney because opponent's nonappearance was inadvertent, and attorney ignored opponent's offer to reschedule deposition at mutually convenient time].) But here, any further meet and confer would have been futile. This was the second non-appearance. It appears that Plaintiff is non-responsive to her counsel of record.

Within 30 days of the notice of ruling, Plaintiff is ordered to appear for her deposition, unless Defendant agrees to a later date.

Within 30 days of the notice of ruling, Plaintiff is ordered to pay $2,470 to Manning & Kass Ellrod, Ramirez, Trester LP, in reasonable costs and expenses resulting from the failures to appear.

Defendant shall give notice of the ruling.