Judge Kerry Bensinger, Case Number: 19STCV41365, Date: 2023-05-24 Tentative Ruling

MOTION FOR ORDER COMPELLING DEFENDANT HUNG VI TRUONG’S APPEARANCE AT DEPOSITION

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

On December 8, 2022, Plaintiffs filed a motion to compel Truong’s appearance at deposition. The motion was heard on April 17, 2023. The Court denied the motion because (1) Plaintiffs failed to comply with the meet and confer requirement under Code of Civil Procedure section 2025.450 and (2) Plaintiffs never provided an electronic “link” enabling attendance at the remote appearance deposition.

On February 3, 2023, Plaintiffs filed these motions to compel Chan’s and Truong’s appearances at deposition. In the notices of motion, Plaintiffs seek monetary sanctions against each defendant.

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.)

“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).)

Plaintiffs properly served a Second Amended Notice of Deposition on each Defendant. The depositions were scheduled for November 11, 2022. Defendants did not serve any objections yet failed to appear. (Waltman Decls., ¶¶ 6-8.) Based on the foregoing, Plaintiffs argue they are entitled to an order compelling Defendants’ appearances at deposition.

Defendants contend that these motions 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.

The Court notes that the basis for Plaintiffs’ motion and Defendants’ opposition is nearly identical to the December 8, 2022 motion to compel Truong’s appearance at deposition.[1] And, just as then, the Court agrees with Defendants’ contentions. 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 Defendants’ 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 Defendants’ nonappearance. Defendants contend Plaintiffs never provided the electronic link to attend the deposition. If Plaintiffs contacted Defendants to inquire about Defendants’ 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.

Accordingly, the motions are DENIED[2]. Given the Court’s ruling, Plaintiffs’ requests for sanctions are DENIED.

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.

[1] The Court recognizes that these motions differ from their December 8, 2022 motion to compel in their references to a stipulation of liability and causation of injuries, and Defendants’ refusal to sit for confidential sworn statements to discuss their assets. (See Motions, p. 6.) While such information is relevant as background information, Plaintiffs do not sufficiently explain how the stipulation and Defendants’ refusal to provide sworn statements on their financial condition factor in the disposition of these motions to compel. Accordingly, the Court does not consider them further.

[2] Notwithstanding the Court’s ruling, Plaintiff is entitled to take Defendant’s deposition pursuant to Code of Civil Procedure section 2025.280, subdivision (a).