Judge Donald F. Gaffney, Case Cipriano v. Nunez Blanco 2023-08-30 Tentative Ruling

Judge: Donald F. Gaffney, Case: Cipriano v. Nunez Blanco, Date: 2023-08-30 Tentative Ruling

TENTATIVE RULINGS:

Motion to Compel Deposition

Defendant Juan Nunez Blanco moves to compel Plaintiff Anahin Cipriano to appear for an in-person deposition. For the following reasons, Defendant’s motion is DENIED without prejudice.

On December 2, 2022, Defendant served a Notice of First Continuance of Deposition, setting Plaintiff’s deposition for January 31, 2023. (Beck Decl. ¶ 3, Ex. B.) Plaintiff did not object and did not respond to Defendant’s attempts to confirm the deposition until the day before (Id. at ¶ 4.) On January 30, 2023, Plaintiff’s counsel stated that he was unable to confirm whether his client would appear for deposition on January 31, 2023. (Id. at ¶ 4.) On January 31, 2023, neither Plaintiff nor her counsel appeared for the deposition. (Id. at ¶ 5.) Defendant took a Certificate of Non-Appearance. (Id. at Ex. C.)

On February 1, 2023, Defendant served a Notice of Second Continuance of Taking of Deposition which continued Plaintiff’s deposition to March 8, 2023. (Beck Decl. ¶ 6, Exs. E-F.) Again, Plaintiff did not object and did not respond to Defendant’s attempts to confirm the deposition date until the day before (Id. at ¶¶ 7-9, Exs. G-I.) On March 7, 2023, Plaintiff’s counsel sent Defense counsel’s office an e-mail to confirm the March 8, 2023, deposition date. (Doulatshahi Decl. ¶ 1a., Ex. A.) Defense counsel’s office, however, did not receive the e-mail and were unaware of Plaintiff’s confirmation of the March 8, 2023, until a telephone call with Plaintiff’s counsel later that evening. (Id. at ¶ 2; Beck Decl. ¶ 10, Ex. J.) By the time Plaintiff’s counsel called, Defense counsel had cancelled the depositions. (Beck Decl. ¶ 10, Ex. J.)

Any party may obtain discovery by taking in California the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency. (Id.) The service of a deposition notice is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying. (Code Civ. Proc., § 2025.280(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 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. (Code Civ. Proc., § 2025.450(a).)

Defendant’s motion is based, in part, on the December 2, 2022, Notice of First Continuance of Deposition which set the deposition for Plaintiff Anahin Capriano for January 31, 2023. (Beck Decl. ¶ 3, Ex. B.) Defendant has adequately demonstrated that after service of the deposition notices, Plaintiffs failed to appear for examination without having served a valid objection. (Id. at ¶ 5, Ex. C.)

Defendant, however, did not adequately comply with the requirement to contact the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450(b)(2).) “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.” (Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124.) There is no indication that the parties’ counsel engaged in a good faith attempt to resolve the issue. Rather, the evidence suggests that counsel neither spoke to each other nor engaged in email communications. Although Plaintiff’s counsel appears equally, if not more, responsible for the parties’ failure to engage in an informal attempt to resolve the issue, the meet and confer requirement of Code of Civil Procedure section 2025.450 remains. Counsel are encouraged to continue in their efforts to coordinate a mutually agreeable deposition date and are reminded that a failure to meet and confer may be considered sanctionable discovery misconduct under the Code.

The parties’ requests for sanctions are denied.

Plaintiff Anahin Capriano to give notice.

Motion to Compel Deposition

Defendant Juan Nunez Blanco moves to compel Plaintiff Leslie Real Roman to appear for an in-person deposition. For the following reasons, Defendant’s motion is DENIED without prejudice.

Defendant’s motion is based, in part, on the December 2, 2022, Notice of First Continuance of Deposition which set the deposition for Plaintiff Leslie Real Roman for January 31, 2023. (Beck Decl. ¶ 3, Ex. B.) Defendant has adequately demonstrated that after service of the deposition notices, Plaintiffs failed to appear for examination without having served a valid objection. (Id. at ¶ 5, Ex. C.)

The parties’ requests for sanctions are denied.

Plaintiff Leslie Real Roman to give notice.