Judge: Frank M. Tavelman, Case: 23BBCV01035, Date: 2025-01-17 Tentative Ruling

Case Number: 23BBCV01035    Hearing Date: January 17, 2025    Dept: A

MOTION TO COMPEL DEPOSITION

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Gibraltar Convalescent Hospital (Plaintiff) brings this action against Lucille Mary Schermerhorn (Defendant). Plaintiff alleges Defendant owes approximately $153,742.24 for skilled nursing care that was rendered to Defendant’s late husband (Decedent).

Before the Court is Plaintiff’s motion to compel the deposition of Defendant. Plaintiff argues that despite properly noticing Defendant’s deposition, Defendant did not object to the deposition and did not appear. Defendant does not oppose this motion. Pursuant to C.R.C. Rule 8.54(c), a failure to oppose a motion may be deemed consent to its being granted.

ANALYSIS: 

I.                    LEGAL STANDARD 

“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, […] 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.” (C.C.P. § 2025.450(a).)

II.                 MERITS

Timeline

On October 31, 2024, Plaintiff’s counsel served Defendant with a Notice of Deposition for November 14, 2024 at 9:00 a.m. (Wilson Decl. ¶ 3, Exh. A.) Defendant never served Plaintiff with any objection to the notice. (Wilson Decl. ¶ 4.) On November 12, 2024, Plaintiff’s counsel emailed Defendant’s counsel as a reminder of the upcoming deposition. (Wilson Decl. ¶ 5, Exh. B.)

On November 13, 2024 at 3:16 p.m., Defendant’s counsel emailed Plaintiff’s counsel requesting that the deposition be rescheduled. (Wilson Decl. ¶ 6, Exh. C.) This email provided no explanation for why the deposition needed to be rescheduled or why Defendant had never formally responded to the notice. (Id.) Instead, Defendant’s counsel simply requested that they be provided “three workable dates in December.” (Id.) Plaintiff’s counsel denied the request, citing the lack of justification for rescheduling and that the deposition was scheduled to occur at 9:00 a.m. the next morning. (Wilson Decl. Exh. D.)

Plaintiff attaches Defendant’s nonappearance as Exhibit E. After the nonappearance, Plaintiff’s counsel emailed to inquire as to Defendant’s availability for three dates in November. (Wilson Decl. ¶ 9, Exh. F.) This email received no response. (Id.)

Discussion

The Court finds that Plaintiff has sufficiently demonstrated they are entitled to relief under C.C.P. § 2025.450(a). Plaintiff has demonstrated that (1) Defendant was properly served with notice of the deposition, (2) Defendant failed to object to the notice, (3) Defendant failed to appear at the noticed deposition, and (4) Plaintiff’s counsel properly inquired as to the nonappearance in satisfaction of their meet and confer requirements. Accordingly, Plaintiff’s unopposed motion to compel the deposition of Defendant is GRANTED. Due to the jury trial scheduled for March 3, 2025, the deposition shall take place no later than January 31, 2025, or such later date as stipulated to by the parties.

Sanctions

“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.” (C.C.P. § 2025.450.)

Here, the Court finds sanctions are not appropriate.  Albeit it was the day before the deposition, Defense counsel requested to reschedule for the following month and did not oppose this motion.  While Plaintiff was justifiably frustrated that Defense counsel did not timely request a continuance nor provide an explanation, nevertheless the conduct is such that Defendant appeared to be making an effort to pick an alternative date.  Accordingly, the Court declines to award sanctions. 

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Gibraltar Convalescent Hospital’s Motion to Compel Deposition came on regularly for hearing on January 17, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL DEFENDANT’S ATTENDANCE AT DEPOSITION IS GRANTED.

DEFENDANT’S DEPOSITION SHALL OCCUR NO LATER THAN JANUARY 31, 2024 OR SUCH OTHER DATE AS STIPULATED TO BY THE PARTIES.

SANCTIONS ARE DENIED.

PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED.