Judge: Kerry Bensinger, Case: 19STCV41365, Date: 2023-04-17 Tentative Ruling

Case Number: 19STCV41365    Hearing Date: April 17, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            BACKGROUND

On November 18, 2019, plaintiffs Richard Fei and Alice Fei (collectively, “Plaintiffs”) filed this action against defendants Ann Chan and Hung Vi Truong (collectively, “Defendants”), for damages arising from a motor vehicle collision.

On December 8, 2022, Plaintiffs filed this motion to compel Defendant Hung Vi Truong’s (hereinafter, “Defendant”) appearance at deposition.  In the notice of motion, Plaintiffs request sanctions against Defendant.

Defendant opposes.

II.          LEGAL STANDARD

A.   Compel Deposition 

Any party may obtain discovery by taking in California the oral deposition of any person.  (Code Civ. Proc., § 2025.010.)  “If, after service of a deposition notice, a party to the action…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.”  (Code Civ. Proc., § 2025.450, subd. (a).)  The motion shall 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, subd. (b)(2); Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124.)

B.   Monetary Sanctions 

“If a motion under [Code of Civil Procedure section 2025.450] subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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).)   

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  (Code Civ. Proc., § 2023.040.) 

III.        DISCUSSION

Plaintiffs properly served a Second Amended Notice of Deposition on Defendant.  The deposition was scheduled for November 11, 2022.  Defendant did not serve any objections yet failed to appear.  (Waltman Decl., ¶¶ 6-8.)  Based on the foregoing, Plaintiffs argue they are entitled to an order compelling Defendant’s appearance at deposition and imposing sanctions.

Defendant contends the motion should be denied for two reasons: (1) Plaintiffs failed to comply with the meet and confer requirement under Code of Civil Procedure section 2025.450, subdivision (b)(2), and (2) the deposition was noticed as a remote appearance and Plaintiffs never provided an electronic “link” enabling attendance at the November 11, 2022 deposition.

Defendant’s points are well-taken.  When a deponent fails to attend the deposition, Code of Civil Procedure section 2025.450, subdivision (b)(2) requires that a motion to compel attendance be accompanied by a meet and confer declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.  Here, Plaintiffs have not included a declaration so stating.  Absent the declaration, the Court cannot ascertain if Plaintiffs’ counsel listened to the reasons offered for Defendant’s nonappearance or attempted to resolve the issue in good faith.  (See Leko, supra, 86 Cal.App.4th at p. 1124 [“Implicit in the requirement that counsel contact the deponent to inquire about the deponent's nonappearance at a deposition, before bring a motion to compel attendance, is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue.”].) 

The importance of a meet and confer declaration here is underscored by the proffered reason for Defendant’s nonappearance.  Defendant contends Plaintiffs never provided the electronic link to attend the deposition.  If Plaintiffs contacted Defendant to inquire about Defendant’s nonappearance, the issue may have been resolved and obviated the need for this motion.  Plaintiffs, having not filed a reply, do not offer any counterargument. 

IV.         CONCLUSION

Accordingly, the motion is DENIED.[1]  Given the Court’s ruling, Plaintiffs’ request for sanctions is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

    Dated this 17th day of April 2023