Judge: Katherine Chilton, Case: 20STLC10509, Date: 2022-09-21 Tentative Ruling

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Case Number: 20STLC10509     Hearing Date: September 21, 2022    Dept: 25

PROCEEDINGS:      MOTION TO COMPEL DEPOSITION

MOVING PARTY:   Defendant Diane S. Freeman

RESP. PARTY:         None

MOTION TO COMPEL DEPOSITION

(CCP § 2025.450)

TENTATIVE RULING:

Defendant Freeman’s Motion to Compel Plaintiff’s Attendance at Deposition is GRANTED.  Plaintiff is ordered to appear for deposition at a time, place, and date to be noticed by Defendant within ten (10) days notice of this order.  However, at either party’s election, the deposition may take place remotely as permitted by Code of Civil Procedure § 2025.310.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of September 20, 2022                      [   ] Late                      [X] None

REPLY:                     None filed as of September 20, 2022                      [   ] Late                      [X] None

ANALYSIS:

I.                Background

On May 18, 2020, Plaintiff Kindrick Clark (“Plaintiff”) filed an action for motor vehicle and general negligence against Defendant Diane S. Freeman (“Defendant”), arising out of an alleged automobile accident that took place on December 26, 2018.  On March 17, 2021, Plaintiff filed an Amendment to the Complaint to correct his name to “Kendrick Clark.”

Defendant filed an Answer on April 19, 2021.

On March 2, 2022, pursuant to a stipulation of the parties, the Court continued trial from June 16, 2022, to December 22, 2022.  (3-2-22 Stipulation and Order.)  Discovery and motion cut-off dates were also continued to reflect the new trial date.  (Ibid.)

On August 19, 2022, Defendant filed the instant Motion to Compel Plaintiff’s Attendance at Deposition (“the Motion.”)  On September 6, 2022, the Court, on its own motion, continued the hearing on the Motion from September 14 to September 21, 2022.

No opposition has been filed.

II.              Legal Standard

Code of Civil Procedure § 2025.450(a) provides:

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”

            The motion shall “(1) set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “(2) be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Code Civ. Proc. § 2025.450(b)(2).)

A court shall impose monetary sanctions in favor of the moving party if the motion to compel is granted, unless “the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Code. Civ. Proc., § 2025.450(g)(1).)

III.            Discussion

A.    Motion to Compel

Defendant moves to compel Plaintiff “to attend a deposition on September 21, 2022, over Zoom, or on another mutually convenient date and time, within ten (10) days of the date of the hearing of this Motion.”  (Mot. p. 1.)

On April 19, 2021, Defendant served Plaintiff with a Notice of Taking Deposition scheduled for July 21, 2021, at 10:00 a.m. via the Zoom application.  (Rossnagel Decl. ¶ 3; Ex. A.)  Plaintiff requested to reschedule the deposition.  (Rossnagel Decl. ¶ 3.)  On January 11, 2022, Defendant served another Notice of Taking Deposition upon Plaintiff, for February 1, 2022, at 10:00 a.m. via the Zoom application.  (Ibid. at ¶ 4; Ex. B.)  Plaintiff’s counsel requested that the deposition be rescheduled because Plaintiff could not be located; Defendant agreed to the request.  (Ibid.)  A Notice of Continuance of Deposition was served on Plaintiff to continue the deposition to March 8, 2022.  (Ibid. at ¶ 5; Ex. C.)  Plaintiff’s counsel once against requested that the deposition be rescheduled.  (Ibid.)  On March 1, 2022, Defendant served a Notice of Continuance of Deposition to continue the deposition date to April 15, 2022.  (Ibid. at ¶ 6; Ex. D.)  On April 14, 2022, Plaintiff’s counsel requested that the deposition be taken off calendar as Plaintiff could not be located.  (Ibid. at ¶ 7; Ex. E.)  Defense counsel informed Plaintiff’s counsel that she had no choice but to file a motion to compel the deposition as Defendant had unsuccessfully attempted to depose Plaintiff for nearly a year.  (Ibid.)  As of the date of the instant Motion, Plaintiff has not appeared at a deposition and has not objected to the Notice of Deposition.  (Ibid. at ¶ 8.)

Defendant argues that she has attempted to depose Plaintiff since July of 2021 and has rescheduled the date several times at the request of Plaintiff and Plaintiff’s counsel.  (Mot. p. 4.)  Plaintiff’s counsel has informed defense counsel that Plaintiff’s whereabouts are unknown; however, a formal objection to the Notice of Deposition has not been made.  (Ibid.)

No opposition has been filed to contest Defendant’s statements.

Defendant’s evidence demonstrates that Plaintiff was served with several deposition notices, did not serve a valid objection, and did not appear for any of the depositions.  Defendant has also provided a declaration showing that defense counsel communicated with Plaintiff’s counsel and informed Plaintiff’s counsel of Defendant’s intention to file a motion to compel deposition.  Therefore, Defendant is entitled to an order compelling Plaintiff to appear for the deposition.

The Court GRANTS Defendant’s Motion to Compel Plaintiff’s Attendance at Deposition.  Plaintiff is ordered to appear for deposition at a time, place, and date to be noticed by Defendant. 

B.    Sanctions

            Code of Civil Procedure § 2023.030(a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.  A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery.  (Code Civ. Proc., § 2023.010(d).)  In addition, a court shall impose monetary sanctions if a motion to compel a deposition is granted unless “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(g)(1).)

The Court finds Plaintiff’s failure to appear for deposition a misuse of the discovery process.  The imposition of sanctions is also mandatory under Code of Civil Procedure § 2025.450 as Plaintiff has not presented any argument demonstrating sanctions would be unjust.

However, Defendant has not sought sanctions through the Motion.  Thus, sanctions are not awarded.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant Freeman’s Motion to Compel Plaintiff’s Attendance at Deposition is GRANTED.  Plaintiff is ordered to appear for deposition at a time, place, and date to be noticed by Defendant, within ten (10) days notice of this order.  However, at either party’s election, the deposition may take place remotely as permitted by Code of Civil Procedure section 2025.310.

Moving party is ordered to give notice.