Department 30, Spring Street Courthouse

January 10, 2023

22STCV22417

Motion to Compel Defendant’s PMQ to Appear for Deposition filed by Plaintiff Alma Gardiner

The motion is granted.

The deposition is to occur within 30 days after the date of this order.

The request for sanctions is granted.

Sanctions in the amount of $1,419.45 are imposed jointly and severally on Defendant and Defendant’s Counsel of record.  Sanctions are payable within 30 days after the date of this order.

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

 

 

This is an action for negligence and premises liability arising from an incident where automatic doors injured Plaintiff while she was on Defendant’s premises. Plaintiff Alma Gardiner filed her Complaint against Michael’s Stores, Inc. on July 12, 2022.

On October 17, 2022, Plaintiff filed the instant motion to compel deposition of Defendant’s employees and/or person most qualified and to produce documents at deposition.

Moving Arguments 

Plaintiff moves to compel deposition of Defendant’s employee and/or person most qualified and to produce documents at deposition on the grounds that Defendant failed to produce the employees for deposition despite three properly served deposition notices. Plaintiff also seeks sanctions.

Opposing Arguments

Defendant argues that the motion should be denied because Plaintiff did not in good faith attempt to meet and confer prior to filing this motion. Defendant also argues that sanctions are not warranted.

Reply Arguments

None filed.

 

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.) Plaintiffs may not serve deposition notices until 20 days after service of summons or appearance by any defendant. (Code Civ. Proc., section 2025.210(b).) 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.)

Plaintiff moves to compel the deposition of Defendant’s employee and/or person most qualified on the grounds that Defendant failed to produce its PMQ for deposition despite three properly served deposition notices. 

Plaintiff’s counsel testifies that on April 4, 2022, Plaintiff served her first notice of taking deposition with the deposition set for April 31, 2022. (Peabody Decl., ¶3.) On August 16, 2022, Defendant filed its Answer. (Id., ¶5.) On August 18, 2022, Plaintiff served a notice of first continuance of taking deposition setting the deposition for September 9, 2022. (Id., ¶6.) On August 18, 2022, Plaintiff’s counsel sent a letter to Defendant’s counsel reiterating the deposition would take place on September 9, 2022. (Id., ¶7.) On August 19, Defendant’s counsel responded with an informal objection and stated Defendant’s counsel would be unavailable for the noticed date. (Id., ¶8.) Although Defendant’s counsel stated she would confer with Defendant regarding available dates, Defendant’s counsel never provided available dates for the deposition. (Id., ¶9.) On August 30, Plaintiff’s counsel’s office emailed Defendant’s counsel requesting available deposition dates. (Id., ¶9.) On September 1, 2022, Defendant’s counsel requested more information regarding the noticed categories in Plaintiff’s deposition notice and requested more time to confer with Defendant. (Id., ¶10.) Plaintiff gave Defendant until September 7, 2022 to provide available deposition dates. (Id.)

On September 8, 2022, after receiving no response from Defendant, Plaintiff issued a second continuance of taking deposition on Defendant. On September 29, 2022, after receiving no further communication from Defendant, Plaintiff’s counsel contacted Defendant’s counsel to confirm the deposition on October 6, 2022. (Id., ¶12.) After receiving no response, Plaintiff’s counsel followed up again on October 4, 2022. (Id., ¶13.) Defendant failed to produce its PMQ for deposition and Plaintiff took a certificate of non-appearance against Defendant on October 8, 2022. (Id., ¶14.) On October 10, 2022, Plaintiff’s counsel emailed Defendant’s counsel to inquire as to the non-appearance. (Id., ¶15.) Defendant’s counsel failed to respond as of the date this motion was filed.

Defendant’s counsel states Plaintiff’s counsel noticed the depositions exactly 20 days after Defendant was served. (Carr Decl., ¶3.) Defendant’s counsel stated she was unavailable and asked to confer on agreeable dates on August 18, 2022 and again on September 1, 2022. (Id., ¶¶4-6.) Defendant’s counsel argues that Plaintiff unilaterally set deposition dates, failed to meaningfully meet and confer, and addressed deposition notices to the wrong attorney at her firm. (Id., ¶¶4-8.)

Because Defendant failed to produce its PMQ for deposition despite three properly served deposition notices, Plaintiff’s motion is granted. 

Defendant’s arguments are without merit. Plaintiff was permitted to serve a deposition notice 20 days after Defendant was served. Plaintiff’s evidence also shows that Plaintiff’s counsel repeatedly asked for agreeable dates and Defendant failed to respond with proposed dates. There is no law that states a party cannot unilaterally set a deposition date. Additionally, where a party fails to appear for deposition, there is no meet and confer requirement. Rather, the deposing party must contact the deponent to inquire about the non-appearance. Here, Defendant failed to produce its PMQ for deposition and Plaintiff did inquire as to Defendant’s non-appearance in October 2022 and received no response. Lastly, even if Plaintiff addressed the deposition notices to the wrong attorney in Defendant’s counsel’s firm, Defendant’s counsel was aware of the deposition notices and does not state that this mistake prevented her from responding to the notice or moving forward with the deposition. 

With respect to sanctions, sanctions are mandatory where a motion to compel deposition was granted 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., section 2025.450, subd. (g)(1). Here, Plaintiff’s motion was granted, and the Court does not find that Defendant acted with substantial justification or that other circumstances make the imposition of sanctions unjust. 

However, Plaintiff’s request for sanctions is excessive. The Court awards $1,419.45 for 2.5 hours of attorney time at a rate of $250 an hour, filing fees, and court reporter fee.