Judge Jill Feeney, Case 21STCV06594 2022-10-10 Tentative Ruling

Judge: Jill Feeney, Case: 21STCV06594, Date: 2022-10-10 Tentative Ruling

Case Number: 21STCV06594 Hearing Date: October 10, 2022 Dept: 30

Department 30, Spring Street Courthouse

October 10, 2022

21STCV06594

Motion to Compel Deposition of Defendant Compucom Systems, Inc.’s PMK

DECISION

The motion is granted.

Defendant CompuCom Systems, Inc. is ordered to produce its PMK for deposition within the 30 days after the date of this order.

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 action arises out of a vehicle accident which occurred on April 17, 2019. Emily Kwong (“Plaintiff”) was driving on Huntington Drive in Monrovia, California when she was rear-ended by a vehicle which was, in turn, rear-ended by a vehicle driven by Richard Garcia. During the relevant time period, Richard Garcia was operating his vehicle in the course and scope of his employment with CompuCom Systems, Inc.

On February 18, 2021, Plaintiff filed a Complaint against Richard Garcia, Martha Avila-Garcia, and Does 1 to 20, alleging a single cause of action for Damages for Personal Injury.

On March 18, 2021, Plaintiff substituted CompuCom Systems, Inc. for Doe 1.

On June 4, 2021, Plaintiff dismissed Defendant Martha Avila-Garcia.

On July 22, 2021, Plaintiff filed the operative First Amended Complaint against Richard Garcia, CompuCom Systems, Inc., and Does 2 to 20, alleging a single cause of action for Damages for Personal Injury.

On September 13, 2022, Plaintiff filed the instant motion to compel deposition of Defendant CompuCom’s (“CompuCom”) PMK.

Summary

Moving Arguments

Plaintiff alleges that CompuCom has failed to produce its person most qualified (“PMK”) for deposition despite repeatedly rescheduling the deposition.

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

Plaintiff moves for an order compelling the deposition of CompuCom’s PMK.

Here, Plaintiff is entitled to orders compelling CompuCom’s PMK’s attendance at deposition because Plaintiff made three prior attempts to depose CompuCom’s PMK without success. (Song Decl., ¶10.) The deposition was originally scheduled for July 18, 2022. (Id., ¶6.) The deposition was rescheduled for September 13, 2022 because CompuCom’s counsel asked to reschedule. (Id., ¶¶7-11.) The deposition was again cancelled on September 9, 2022 because CompuCom’s counsel was sick with COVID-19. (Id., ¶13.) There is no evidence a new deposition date has been set or provided. Counsel’s declaration fails to state that she attempted to contact Defendant regarding the nonappearance as required by Code Civ. Proc., § 2025.450, subd. (b)(2). Nevertheless, because of the history of communication between the parties on this issue, Plaintiff’s repeated attempts to depose CompuCom’s PMK, and the lack of any opposition filed here by Defendant, the motion is granted.