Judge: Douglas W. Stern, Case: 22STCV24979, Date: 2023-02-07 Tentative Ruling

Case Number: 22STCV24979    Hearing Date: February 7, 2023    Dept: 68

The Court is not eager to become a scheduling clerk for the parties.  The Court cautions the parties that they are to work together in good faith to schedule the discovery in this case.     The Court also cautions counsel that cooperatively engaging in discovery is not a “negotiation” where there must be something gained for what is given.  Civil litigation demands that parties always operate with the utmost of good faith.  Don’t make the process of the litigation “the litigation.”

This motion involves the attempts to take the deposition of the Plaintiff.

This case arises out of an employment discrimination suit filed by Plaintiff. (Opposition at p. i.) On November 21, 2022, Defendant served Plaintiff with a notice of deposition to take place on December 6, 2022. (Opposition at p. iii.) On November 30, 2022, Plaintiff served objections to Defendant’s notice, indicating that Plaintiff would be unavailable on the date that Defendant had indicated. (Opposition at p. iii.) From there, further attempts to meet and confer failed. (Opposition at pp. iii-iv.) Defendant filed this motion on January 5, 2023. Plaintiff filed his opposition on January 25, 2023. Defendant filed its reply on January 31, 2023.

CCP section 2025.450(a) provides that “[i]f, 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, 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.”

“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).)

It appears that the primary issue was a “breakdown” in communication between the parties regarding the timing of the deposition, and other depositons. Plaintiff alleges that he served an objection to Defendant’s deposition notice indicating that Plaintiff was not available for the date that Defendant had chosen. (Norder Decl., ¶ 10-11.) Efforts at meeting and conferring regarding the timing of the deposition were lacking or nonexistent.

The Court shall grant the motion to compel deposition.  The Court intends to set the deposition date, time and location at the hearing.

The request for an award of sanctions is DENIED.

Make every reasonable effort to cooperatively schedule depositions in hopes that there are no further scheduling disputes.  And then fully exhaust meet and confirm opportunities on all discovery and the scheduling of depositions disputes that arise.  Then the Court shall grant sanctions when it finds the position of a party not substantially justified.