Judge: Kevin C. Brazile, Case: 20STCV24898, Date: 2024-03-08 Tentative Ruling
Case Number: 20STCV24898 Hearing Date: March 8, 2024 Dept: 20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date: March 8, 2024
Case Name: David Reed, et al. v. Eddie Salinas, et al.
Case No.: 20STCV24898
Motion: Motion to Compel Deposition
Moving Party: Defendants Cal Homes Group, Inc., Eddie Salinas, and HVMJ, LLC
Responding Party: Plaintiffs David Reed & Connie Reed
Notice: OK
Ruling: The Motion is GRANTED.
Defendants to give notice.
BACKGROUND
This case stems from an agreement that arose out of a voluntary mediation between David and Connie Reed (Plaintiffs) and Eddie Salinas and Cal Homes Group, Inc., (collectively, Defendants). On January 10, 2020, Plaintiffs attended a voluntary mediation with Defendants and as a result, the parties signed and agreed to terms of a settlement (the Agreement). (Complaint, ¶¶ 9-11.) The Agreement stipulated that in consideration for Plaintiffs dropping their claims against Defendants, Defendants would pay Plaintiffs $15,000.00. (Complaint, ¶ 11.) However, on February 28, 2020, Defendants breached the Agreement via an emailed letter which stated Defendants were insolvent and no payment would be forthcoming. (Complaint, ¶ 14.)
Plaintiffs filed suit on July 1, 2020 alleging two causes of action: (1) breach of contract, and (2) fraudulent deceit. The motion now before the Court is Defendants’ Motion to Compel Plaintiffs Deposition (Motion). Plaintiffs filed opposition papers, and Defendants file a reply.
DISCUSSION
Applicable Law
A motion lies to compel deposition attendance and document production, after service of a deposition notice, where a deponent fails to appear at, or proceed with, a deposition, without having served a valid objection. (CCP §2025.450(a).) No meet and confer is required to compel initial deposition attendance, but instead there must be a declaration showing that moving party inquired about the nonappearance. (CCP §2025.450(b)(2).)
“Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124. See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).)
Application to Facts
Timeline
Defendants argue that the Motion should be granted because after multiple attempts to schedule depositions, and two affidavits for non-appearance, Plaintiffs have failed to provide a justification for not appearing.
Defendants served Plaintiffs on August 4, 2023 with deposition notices for October 4, 2023 for Plaintiff Connie Reed (Connie), and October 9, 2023 for Plaintiff David Reed (David). On October 2, 2023, Plaintiffs’ counsel served an objection to the deposition notice for Connie, in violation of the deadline set by CCP § 2025.410(b), which demands an objection be made three calendar days prior to the deposition date. Defense counsel sent a meet and confer letter stating that they intended to convene the deposition. (Motion, Exh. 3.) Defense counsel did so and when Connie did not appear, obtained an Affidavit of Non-Appearance.
Defense counsel then sent Plaintiffs’ counsel a meet and confer letter on October 6, 2023, requesting available dates for Plaintiffs’ depositions. The parties settled on November 14, 2023 for Connie and November 16, 2023 for David. (Motion, Exh. 7.) On November 11, 2023, Plaintiffs’ counsel emailed Defense counsel stating that Connie’s deposition was not necessary, and that Connie had a medical condition that would preclude her from testifying. This was the first time Defense counsel had been made aware of any such medical condition. Further, Plaintiffs’ counsel demanded that the deposition be taken via Zoom, Defense counsel declined. The deposition for Connie was convened on November 14, 2023, however, Connie did not appear, and Defense counsel obtained an Affidavit of Non-Appearance. On November 15, 2023, the day before David’s deposition, Plaintiffs’ counsel informed Defense counsel that he was exposed to someone who had contracted COVID-19, Plaintiffs’ counsel again requested the deposition move forward via Zoom. Defense counsel declined, convened the deposition on November 16, 2023 as planned, and obtained an Affidavit of Non-Appearance when David did not show.
After further meet and confer efforts, Plaintiffs’ counsel emailed Defense counsel on December 5, 2023 stating that his clients would not be appearing for their rescheduled depositions and that Plaintiffs’ counsel still believed that Connie’s deposition was unnecessary due to her medical condition. Defense counsel notes that at no time in the prior two years since this case has commenced did Plaintiffs’ counsel mention a medical condition for one of his clients, and certainly not when the initial two depositions for Connie for October 4, 2023 and November 14, 2023 were confirmed.
Analysis
Plaintiffs provide several explanations in their opposition papers. First, Plaintiff David Reed must frequently travel for extended periods of time due to his employment. Second, that Plaintiff Connie Reed provided documentation form her doctor that she is unable to sit for a deposition.[1] Finally, that the non-appearances were the fault of Defense counsel, and the discovery cutoff has passed. The Court disagrees.
Plaintiffs are reminded of their discovery obligations and that they are expected to prioritize those discovery obligations accordingly, as there are penalties for not doing so. (See CCP § 2023.030(a) and CCP § 2023.010.) As far as Connie Reed’s medical condition, it is unclear why this was not communicated to Defense counsel earlier. The case had been pending for more than two years before Defense counsel was informed. Plaintiffs are silent on this point in their opposition papers. Finally, the non-appearances were not the fault of Defense counsel. The first non-appearance was on October 4, 2023, because Plaintiffs’ objection came in violation of the deadline set by CCP § 2025.410(b). Then the November 14, and 16 depositions did not occur because of Connie’s medical condition, and Plaintiffs’ counsel unilaterally demanding a Zoom deposition, respectively. The Court fails sees how this is the fault of Defense counsel. Finally, the reason the discovery deadline passed without these depositions being completed is because of Plaintiffs’ delays. Therefore, the Motion is granted, and sanctions are warranted.
Sanctions
Defense counsel provides that they incurred a total of $4,386.50 in scheduling and convening the depositions subject to this Motion. The Court will award reduced sanctions in the amount of $1,400 sanctions to Defendants.
CONCLUSION
Defendants’ Motion to Compel Plaintiffs Deposition is GRANTED. The Court will award sanctions to Defendants and impose them on Plaintiffs in the amount of $1,400.
Defendants to give notice.