Judge Kerry Bensinger, Case 20STCV20632 2023-01-24 Tentative Ruling

On June 1, 2020 Plaintiff Kristian Grant Grahek (“Plaintiff”) filed a Complaint alleging a cause of action for negligence, which arises from a motor vehicle accident, against Defendants David Lomeli (“Lomeli”), Asphalt Professionals, Inc. (“AP”), and Jeffrey C. Ludlow (“Ludlow”).

On December 23, 2022, Plaintiff filed the instant Motion to Compel the Deposition of Lomeli (hereinafter referred to as “Defendant”). Defendant filed his opposition on January 11, 2023. Plaintiff filed his reply on January 12, 2023.

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 properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280(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(a).) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. (Code Civ. Proc., § 2025.410(c).)

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450(a).)

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450(g)(1).) On motion of a 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 in favor of that party and against the deponent. (Code Civ. Proc., § 2025.450(g)(2).)

Plaintiff moves to compel the deposition of Defendant because Defendant failed to appear to his noticed deposition on December 15, 2022, and Plaintiff had to take a certificate of non-appearance. (Johnson Decl., ¶ 30, Exh. 5.) Defendant objected to the deposition on December 2, 2022, on the grounds that it was unilaterally set. (Id. at 27, Exh. 4) Plaintiffs had noticed and attempted to take the deposition of Defendant on two occasions prior to December 15, 2022, but Defendant was not available, and Plaintiff had to take those depositions off-calendar. (Id. at ¶¶ 1, 10, 11 Exhs. 1-2.) Plaintiff also represents that Defendant failed to provide firm dates for his availability to take the deposition, despite his counsel’s numerous attempts to obtain a firm date for the deposition. (Id. 1-4, 6-15, 18-27.)

In opposition, Defendant’s counsel represents that Defendant was unable to appear at the first two depositions because he was unavailable. (Taylor Decl., ¶¶ 4-5.) Then on October 28, 2022, Defendant’s counsel informed Plaintiff’s counsel that he was having difficulties contacting Defendant, and that Defendant’s counsel would provide alternative dates for the deposition once he was able to make contact with Defendant. (Id. at ¶ 2.) Defendant contends that despite the knowledge of Defendant’s counsel’s inability to get in contact with Defendant and the valid objection to the deposition, Plaintiff proceeded with the deposition on December 15, 2022. On January 10, 2023, Defendant’s counsel informed Plaintiff that he could produce Defendant for deposition. (Id. at ¶ 3.)

The Court finds that there is good cause to compel the deposition of Defendant. As a preliminary matter, Defendant’s objection to the December 15, 2022 deposition was not a valid objection, as the objection was based on Plaintiff unilaterally setting the deposition. Unilaterally setting a deposition is not a valid basis to object to a deposition, as an objection relates to an “error or irregularity” with any of the deposition notice requirements set forth in Code of Civil Procedure sections 2025.210 through 2025.295. (See Code Civ. Proc., Part 4, Chp. 9 Art. 4; Code Civ. Proc. § 2025.410(a) [“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity.”.)

Defendant points the Court to LASC Local Rule Chapter 3, Appendix 3.A(e)(2) to contend that the objection was proper, but, as set forth above, the proper basis for objecting to a deposition notice relates to any errors or irregularities in the notice requirements set forth in Code of Civil Procedure sections 2025.210 through 2025.295, and, unilaterally setting a deposition is not a valid basis to object to a deposition. (LASC Local R. Ch. 3, Appen. 3.A(e)(2) [In scheduling depositions, reasonable consideration should be given to accommodating schedules or opposing counsel and of the deponent, where it is possible to do so without prejudicing the client’s rights.])

Furthermore, while the Local Rules encourage the parties to work together to schedule a deposition, counsel shall do so to the extent possible, without prejudicing their rights. Here, trial is scheduled for April 28, 2023, and is fast approaching. Plaintiff’s counsel reasonably determined that it was necessary to move forward with the deposition of Defendant to prepare for trial, or Plaintiff could be prejudiced. Moreover, while Defendant’s counsel was unable to contact Defendant from October 2022 through January 2023, Defendant’s counsel did not inform Plaintiff of his inability to communicate with Defendant until approximately ten months after the first notice of deposition was served, and after Plaintiff’s counsel had repeatedly asked for dates to take the deposition of Defendant. (Johnson Decl., ¶¶ 1-4, 6-15, 18-27.) Defendant’s counsel fails to explain why no firm dates were provided for the deposition in the ten months preceding his inability to contact Defendant.

In light of the ruling above, the Court finds that sanctions are appropriate against Defendant. The Court finds that sanctions are appropriate in the reduced amount of $1,560 (representing 3 hours of work at a rate of $500 per hour plus a $60 filing fee).

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.

Hon. Kerry Bensinger

Judge of the Superior Court