Judge: Frank M. Tavelman, Case: 23BBCV02251, Date: 2024-05-03 Tentative Ruling

Case Number: 23BBCV02251    Hearing Date: May 3, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL APPEARANCE AT 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 requested 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: 

Eileen Figueroa (Plaintiff) brings this action against 7-Eleven, Inc., Kumar & Associates, Inc., and Vijay Kumar. Plaintiff alleges that she was threatened by a 7-Eleven employee with a gun. Plaintiff alleges this interaction occurred after an altercation that occurred while Plaintiff and her friend patronized the 7-Eleven store. Plaintiff has amended her Complaint to replace fictitious names with Kumar & Associates, Inc., and Vijay Kumar (Kumar Defendants). Kumar & Associates, Inc. is the company which owns the individual 7-Eleven locations and Vijay Kumar is the owner of the company.

Before the Court is a motion brought by Kumar Defendants seeking to compel Plaintiff’s attendance at a deposition. Plaintiff opposes the motion and Kumar Defendants reply.

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, 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.”(C.C.P. § 2025.450(a).)

“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.” “If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition.” (C.C.P. § 2025.410(b).)

C.C.P. § 2025.450(b) provides: “A motion under subdivision (a)... shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Further, the motion to compel must also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (C.C.P.§ 2025.450(b)(1).)

“Good cause” is construed liberally, with justification for discovery found where specific facts show the documents are necessary for effective trial preparation or to prevent surprise at trial. (Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 586-587; see Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) The trial court has discretion to determine that relevance to the subject matter alone constitutes “good cause.” (Id. at 586.) The fact that there is no alternative source for the information sought is an important factor in establishing “good cause,” but it is not essential. (Id. at 587-588.) Once good cause is shown, the burden shifts to the party opposing the motion to justify the objection(s). (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 97.)

II.                 MERITS

Deposition Timeline

Kumar Defendants state that their counsel initially attempted to schedule Plaintiff’s deposition via email with Plaintiff’s counsel in early March 2024. (Ross Decl. Exh. A.) It appears that Plaintiff’s counsel informed Kumar Defendants that she would not be available for deposition until Kumar Defendants produced documents which were being improperly withheld (namely the videotape). (Id.) Kumar Defendants thereafter unilaterally noticed Plaintiff’s deposition for March 19, 2024. (Ross Decl. Exh. B.) On March 15, 2024, Plaintiff’s counsel informed that she would not be appearing and served an objection to the deposition notice via email. (Ross Decl. Exh. C.) Plaintiff’s objection stated that neither she nor her counsel were available on the noticed date. (Id.)

Discussion

Plaintiff objected to the noticed deposition stating “The date of the deposition of Plaintiff was unilaterally set by Defendant. Plaintiff and Plaintiff’s counsel are not available on the date and time noticed.” (Ross Decl. Exh. C.)

The Court first addresses Kumar Defendants’ argument that Plaintiff’s objection to her noticed deposition should be disregarded as untimely. C.C.P. § 2025.410(b) establishes a cutoff period for valid objections of three days prior to the noticed deposition. The statute further requires that objections made three calendar days prior to the deposition shall be made by personal service upon the noticing party. Service via email extends any statutory period of notice by two court days as per C.C.P. § 1010.6(3)(B).

Here, Plaintiff’s objection was served electronically on March 15, 2024. (See Ross Decl., Exh. C.)  A period of two court days before the three-day statutory period would be March 14, 2024. As such, Plaintiff’s written objection served on March 15, 2024 could be considered untimely. At the same time, the Court recognizes that email service appeared to be routine between the parties. For example, Kumar Defendants appear to have served their notice of deposition in this manner. (See Ross Decl. Exh. B.) In this instance, the Court declines to consider Plaintiff’s objections waived where she was still within the time period to personally serve the objection on Kumar Defendants. Plaintiff would have had up to March 16, 2024, to personally serve written objections. The fact that Plaintiff’s counsel instead chose to serve them electronically the weekday before should not be held against Plaintiff. Although Plaintiff’s objection was technically untimely, the Court does not find it should be waived for purposes of adjudicating this motion.

The Court next addresses Kumar Defendants’ failure to meet and confer. C.C.P. § 2025.450(b) requires a motion to compel be accompanied by a meet and confer declaration, except where no valid objection has been served and a party fails to appear. Here, it was Kumar Defendants’ position that there was no valid opposition to the unilaterally noticed deposition, therefore they could not have been expected to meet and confer. As such, the Court does not consider the failure to meet and confer dispositive of the motion.

Kumar Defendants do not brief any other way in which Plaintiff’s objection to a unilaterally noticed deposition based on unavailability is invalid. While the Court understands Kumar Defendants’ contention that Plaintiff was improperly withholding deposition availability until they received videotape of the incident, the fact remains that the official objection was on grounds of unavailability. Further, Plaintiff’s failure to provide alternative dates in her objection does not speak to the validity of the objection itself.  

In the interest of moving this case along in an expeditious manner, the Court is inclined to grant the motion to compel Plaintiff’s deposition. Plaintiff has presented no reason why good cause does not exist to depose her on this matter and it appears the only barrier is availability. The Court notes that the Plaintiff’s counsel advised that deposition could take place in June or July after written discovery.  This does not appear to be unreasonable and is consistent with the timing of depositions this Court has seen.  Unless leave of the Court is obtained, the deposition shall take place no later than July 31, 2024.  The parties are ordered to meet and confer within the next 30 calendar days to agree on a deposition date.  Should the parties be unable to reach an agreement on this date, they are to call the Court and a date will be assigned.

The Court has also read emails between the counsel in this matter and reminds counsel that the California State Bar believes that dignity and respect are so important that the following is part of an attorney’s oath, “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”  This Court shares that belief and does not view inflammatory rhetoric or vitriolic interactions to be particularly helpful in resolving legal disputes.

Lastly, the Court declines to issue sanctions in the matter. C.C.P. 2025.450(g)(1) provides that sanctions are mandatory where a motion to compel is granted, except where the Court finds the opposing party to have acted with substantial justification. While the Court ultimately grants the motion to compel, it does not find Plaintiff to have acted without substantial justification.

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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 

Kumar & Associates, Inc., and Vijay Kum’s Motion to Compel Appearance at Depositon came on regularly for hearing on May 3, 2024, 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 APPEARANCE AT DEPOSITION IS GRANTED.  THE DEPOSITION SHALL OCCUR NO LATER THAN JULY 31, 2024.

THE PARTIES ARE ORDERED TO FURTHER MEET AND CONFER REGARDING THE SCHEDULING OF PLAINTIFF’S DEPOSITION.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANTS TO GIVE NOTICE.  

IT IS SO ORDERED. 

DATE:  May 3, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles