Judge Jill Feeney, Case 20STCV43148 2022-10-10 Tentative Ruling

Judge: Jill Feeney, Case: 20STCV43148, Date: 2022-10-10 Tentative Ruling

Case Number: 20STCV43148 Hearing Date: October 10, 2022 Dept: 30

Department 30, Spring Street Courthouse

October 10, 2022

20STCV43148

Motion to Compel Deposition of Plaintiff Saul Enrique Pacheco and Request for Sanctions

DECISION

The motion is denied without prejudice. Sanctions are not imposed.

Moving party is to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

This is an action for negligence and premises liability arising from a tree trimming accident which took place on November 11, 2018. Plaintiff Saul Enrique Pacheco filed his Complaint against Defendants Donovan Pullen and the Anneke Pullen Irrevocable Trust on November 9, 2020.

On February 28, 2022, the Court granted Plaintiff’s Counsel’s motion to be relieved as counsel.

On June 16, 2022, Defendant Donovan Pullen as trustee of the Anneke Pullen Irrevocable Trust filed his motion to compel Plaintiff Saul Enrique Pacheco’s deposition.

Summary

Moving Arguments

Defendants argue that Plaintiff’s deposition was agreed upon and noticed for May 26, 2022 and Plaintiff failed to appear.

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 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

Defendant moves for an order compelling Plaintiff Saul Enrique Pacheco’s deposition.

Here, Defendant is entitled to an order compelling Plaintiff’s attendance at deposition because Plaintiff was required to appear for his deposition and failed to do so. Moving Defendant’s counsel provides a declaration which states Plaintiff’s deposition was originally scheduled for January 31, 2022. (Kothary Decl., ¶3.) The deposition was taken off calendar after Plaintiff’s former attorney indicated that he was going to file a motion to be relieved as counsel. (Id., ¶3.) The deposition was rescheduled to June 6, 2022 and subsequently canceled because the notice was inadvertently sent to Plaintiff’s former counsel’s office. (Id., ¶¶4-5.) Then on May 3, 2022, the deposition was noticed for May 26, 2022. (Id., ¶6.) Plaintiff, who was notified of the date by mail, failed to appear at deposition. (Id., ¶7.) Counsel’s declaration fails to state that he attempted to contact Plaintiff regarding the nonappearance as required by Code Civ. Proc., § 2025.450, subd. (b)(2).

Given that Plaintiff is pro per, given that notice was mailed to Plaintiff fairly close to the deposition date, and given that Plaintiff has only missed one scheduled date, it is important that Counsel contact Plaintiff about the nonappearance as required by statute.