Judge Jill Feeney, Case 20STCV08149 2023-01-18 Tentative Ruling

On February 22, 2020, Plaintiff Herman Murphy as an individual and as successor in interest of decedent Jalen Murphy, filed a complaint against Defendants Marques Alexander Pina, Virginia Ann Pina, Brea Auto Body, Inc., the Hertz Corporation, Tinasha Sullivan, and Does 1 through 25 alleging wrongful death- motor vehicle negligence and wrongful death- negligent entrustment.

This action stems from a motor vehicle collision on January 6, 2017 in which Decedent Jalen Murphy allegedly sustained traumatic injuries and, as a result, died of a fentanyl overdoes on August 30, 2019.

On August 26, 2021, Decedent’s mother, Tinisha Sullivan, filed an action (case no. 21STCV31607) based on the same incident and same causes of action. Defendants in this action are Marques Alexander Pina (“Marques”), Virginia Ann Pina (“Virginia”), Brea Auto Body, Inc., and the Hertz Corporation.

On September 2, 2022, Defendants Virginia Ann Pina and Brea Auto Body, Inc. filed the instant motions to compel depositions of Plaintiffs Tinasha Sullivan and Herman Murphy.

Defendants Virginia Ann Pina and Brea Auto Body, Inc. (“Moving Defendants”) allege Plaintiffs failed to attend their depositions despite repeatedly rescheduling the deposition.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A party desiring to take an oral deposition shall give a notice in writing which states the specification of reasonably particularly of any materials to be produced by the deponent. (Code Civ. Proc., § 2025.220, subd. (a)(4).) A properly served deposition notice is effective to require a party to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).)

“If, after service of a deposition notice, a party to the action … without having served a valid objection … fails to appear for examination, … or to produce for inspection any document, … 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 … described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

A motion brought to compel a deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

On motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent's testimony would be taken, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party 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. (Code Civ. Proc., § 2025.450.)

Moving Defendants are entitled to orders compelling Plaintiffs Murphy and Sullivan’s attendance at deposition. Moving Defendants’ counsel noticed Murphy’s deposition on December 1, 2021. (Jaime Decl., ¶4.) Murphy objected on the grounds that he was not available. (Id.) Moving Defendants’ counsel emailed Murphy and Sullivan’s counsel on January 10, 2022. (Id., ¶5.) Moving Defendants received no response. (Id.)

Moving Defendants noticed Murphy’s deposition on January 27, 2022 setting the deposition for February 28, 2022. (Murphy Motion, Jaime Decl., ¶6.) Murphy failed to object or respond. (Id., ¶6.) Moving Defendants requested dates for Murphy’s deposition on June 12, 2022 and July 8, 2022. (Id., ¶¶7-8.) To date, Moving Defendants have not received a response from Murphy.

Moving Defendants also noticed Sullivan’s deposition on January 27, 2022 setting the deposition for February 28, 2022. (Sullivan Motion, Jaime Decl., ¶5.) Sullivan’s counsel requested that the deposition be taken off calendar due to unavailability. (Id.) Moving Defendants’ counsel requested dates of availability on June 12, 2022 and Sullivan’s counsel responded that dates would be provided by the end of that week. (Id., ¶¶6-7.) On July 8, 2022, Moving Defendants’ counsel again requested deposition dates and never received a response. (Id., ¶¶7-8.)

Murphy failed to appear for the February 28, 2022 deposition, failed to serve an objection, and did not respond to Moving Defendants’ attempts to meet and confer. Moving Defendants’ motion is granted pursuant to Code Civ. Proc., section 2025.450. Defendants’ motion is granted with respect to Murphy.

Sullivan also failed to proceed with the February 28, 2022 deposition and failed to provide alternative dates despite objecting to the deposition on the grounds that she was unavailable. Sullivan then failed to reschedule her deposition. Moving Defendants’ motion is granted with respect to Sullivan.