Judge Jill Feeney, Case 20STCV37127 2022-10-27 Tentative Ruling

This is an action for negligence and premises liability arising from a slip and fall incident which took place in March 2020. Plaintiff Jose E. Conrado filed his Complaint against Defendant Hwa Kang on September 29, 2020.

Plaintiff argues that he never refused to appear for deposition. Rather, Defendant unilaterally noticed the deposition and failed to meet and confer prior to filing this motion. Plaintiff requests that no monetary sanctions be awarded against Plaintiff.

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.)

Defendant served a notice of taking deposition on Plaintiff through his attorney of record on April 8, 2022. (Smith Decl., ¶3.) The deposition was set for June 1, 2022. (Id.) Defendant served a second notice of taking deposition on May 26, 2022 with the new deposition date set for June 27, 2o22. (Id., ¶4.) Plaintiff failed to appear at the noticed depositions. (Id., ¶6.)

Defendant failed to include a declaration with his motion stating that he contacted Plaintiff to inquire about his non-appearance as required by Code Civ. Proc., § 2025.450, subd. (b)(2). There is no evidence that Defendant ever communicated with Plaintiff regarding his deposition before filing this motion.

Plaintiff’s opposition is untimely because it was filed on October 24, 2022. Plaintiff’s opposition was due on October 14, 2022. Nevertheless, the Court will consider Plaintiff’s opposition.

Plaintiff’s arguments are not persuasive. Plaintiff argues that the depositions were improperly noticed because Defendant served the notices unilaterally. There is no law specifying that a defendant cannot serve deposition notices unilaterally. Plaintiff here failed to make a valid written objection to the deposition as required by Code Civ. Proc., § 2025.410, subd. (a) and failed to appear at a properly noticed deposition. There is also no evidence that Plaintiff ever contacted Defendant about the non-appearance until after Defendant filed his motion to compel Plaintiff’s appearance at deposition.