Judge: Jill Feeney, Case: 20STCV20821, Date: 2023-03-10 Tentative Ruling
Case Number: 20STCV20821 Hearing Date: March 10, 2023 Dept: 30
Department 30, Spring Street Courthouse
March 10, 2023
20STCV20821
Motion to Compel Deposition of Defendant Alan Oswaldo Contreras Rodriguez filed by Plaintiff David Castro
DECISION
The motion is granted.
Defendant Alan Oswaldo Contreras Rodriguez is ordered to appear for deposition within 7 days.
Moving party to provide notice and to file proof of service of such notice within five court days.
Background
This is an action for negligence arising from a vehicle collision which took place in August 2018. Plaintiffs Ricardo and David Castro, Julio Valdes Tirado, and Victoria Morales filed their Complaint against Defendants Robert Andrew Kedroski, Alan Oswaldo Contreras Rodriguez, and MRI, Inc. on June 2, 2020.
On February 22, 2023, Plaintiff David Castro filed the instant motion to compel the deposition of Defendant Alan Oswaldo Contreras Rodriguez.
Summary
Moving Arguments
Plaintiff David Castro (“Castro”) served a deposition notice on Rodriguez on January 27, 2023 setting a deposition for February 9, 2023. Rodriguez did not respond to the notice until February 6, 2023 when his counsel advised that he was not available for the deposition. Rodriguez’s counsel failed to confirm other dates for Rodriguez’s deposition.
Opposition Arguments
Rodriguez argues that this motion is premature because he has not failed to appear for deposition.
Reply Arguments
None.
Legal Standard
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 proceed with it, 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).)
Discussion
Castro served a deposition notice on Rodriguez on January 27, 2023, setting a deposition for February 9, 2023. (Motion, Exh. B.) Rodriguez did not respond to the notice until February 6, 2022, when his counsel advised he would not be available on the deposition date and that he would provide alternate dates. (Motion, Exh. C.) On February 8, Castro’s counsel asked Rodriguez’s counsel if the deposition would proceed on February 9. (Id.) Rodriguez’s counsel requested that the deposition be cancelled and promised to set a new date. (Id.) Rodriguez’s counsel failed to provide alternate dates and no deposition date has been set as of the filing of this motion. (Workman Decl., ¶6.)
Because Rodriguez failed to proceed with the properly noticed deposition on February 9, 2023, Castro’s motion is granted. Rodriguez’s argument that this motion is premature because he has not failed to appear is without merit. Defendant did not serve a written objection to the notice and in any event not being able to appear on the noticed date without providing alternative dates does not constitute a valid objection.
