Judge Jill Feeney, Case 21STCV26963 2023-02-10 Tentative Ruling

This is an action for negligence arising from a vehicle collision which took place on December 6, 2020, and resulted in the death of Adam Robert Morales. Plaintiffs the Estate of Adam Robert Morales through its successor in interest Elaine Morales and Elaine Morales filed their Complaint against Defendant Glenn Wayne Cook on July 22, 2021.

Defendant noticed Plaintiff’s deposition for July 26, 2022. Plaintiff objected to Defendant’s notice on the grounds that she would not agree to appear until after the resolution of criminal proceedings against Defendant. During meet and confer efforts, Plaintiff argued that it was unfair that she be subjected to Defendants’ discovery requests while Plaintiff was precluded from conducting discovery due to Defendant’s Fifth Amendment privilege claims. Defendant noticed Plaintiff’s deposition a second time in November 2022. Plaintiff raised the same objections.

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).)

The court, on motion of any party, may grant leave to complete discovery of to have a motion concerning discovery heard closer to the initial trial date. (Code Civ. Proc., § 2024.050, subd. (a).)

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).)

Defendant seeks to compel Plaintiff to appear at deposition. Defendant’s counsel testifies that noticed Plaintiff’s deposition on May 11, 2022 and set the deposition for July 26, 2022. (Vo Decl., ¶6.) Plaintiff objected to the deposition on July 7, 2022, stating she would not agree to the deposition until after the resolution of the criminal proceedings against Defendant. (Id., ¶7.) After Defendant noticed Plaintiff’s deposition again in November 2022, Plaintiff raised the same objection. (Id., ¶¶15-18.)

“The deposition is improperly noticed as it was unilaterally scheduled for December 1, 2022. Plaintiff and Plaintiff’s counsel are unavailable on that date. Further, there is an ongoing criminal proceeding against Defendant. The Defendant has asserted the fifth amendment and will not permit Plaintiff to conduct any discovery against him. Plaintiff will agree to appear for the deposition after Defendant’s criminal proceeding resolves and the fifth amendment issues is resolved.”

Plaintiff’s objections are invalid. There is no law that states depositions may not be unilaterally noticed. Additionally, Defendant’s Fifth Amendment objections to Plaintiff’s discovery requests are no excuse for Plaintiff to refuse to comply with Defendant’s discovery requests. Plaintiff cites legal authority related to motions to stay proceedings based on concurrent criminal proceedings. These cases do not apply here because no party has moved to stay proceedings. Plaintiff does not raise her own objections with respect to privilege or another valid objection.