Judge Jill Feeney, Case 21STCV03868 2023-04-10 Tentative Ruling

If Defendant did in fact inquire with Plaintiff’s Counsel after the nonappearance of Plaintiff, a declaration setting forth this information must be filed prior to the time of the hearing.

This is an action for negligence arising from a vehicle collision which took place in February 2019. Plaintiff Lorena Escobar filed her Complaint against Hector and Araceli Monreal on February 1, 2021.

Defendants noticed Plaintiff’s deposition on February 25, 2022, setting the deposition for April 12, 2022. After Plaintiff requested that the deposition be taken off calendar, Defendants’ new counsel set a new deposition for September 14, 2022. After Plaintiff could not attend deposition on this new date, Defendants rescheduled the deposition for November 1, 2022. Plaintiff failed to appear for this 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 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).)

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.)

If a motion to compel deposition is granted, sanctions are mandatory in favor of the party who noticed the deposition 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, subd. (g)(1).)

Defendants’ counsel’s declaration is incomplete because the first page is missing. The partial declaration and the attached correspondence show that Plaintiff failed to appear for a properly noticed deposition set for November 1, 2022. (Kalpakian Decl., ¶11; Exh. D.) However, the declaration does not state that Defendants contacted Plaintiff to inquire about her nonappearance.

The evidence shows that Plaintiff failed to appear for her properly noticed deposition. However, there is no evidence that Defendants contacted Plaintiff to inquire about the nonappearance. The Court cannot grant this motion unless Defendants submit a declaration stating they attempted to contact Plaintiff to inquire about her failure to appear for deposition.