Complaint Filed: 7/30/2021 

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Hon. Lee S. Arian¿¿¿ 

Department 27¿¿¿ 

Tentative Ruling¿¿¿ 

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Hearing Date: 3/5/2024 at 1:30 p.m.¿¿¿ 

Case No./Name: 21STCV28210 MICAELA JARAMILLO MACIAS, vs JOSE MANUEL GUDINO, et al. 

Motion: DEFENDANTS’ MOTIONS TO COMPEL MICAELA MACIAS AND AMELIA JARAMILLO’S DEPOSITIONS 

Moving Party: Defendants Jose Manuel Gudino and Wendy Romero Diaz  

Responding Party: Plaintiffs Micaela Macias and Amelia Jaramillo 

Notice: Sufficient¿¿¿ 

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Ruling: DEFENDANTS’ MOTIONS TO COMPEL DEPOSITIONS OF PLAINTIFFS ARE DENIED WITHOUT PREJUDICE.¿ 

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BACKGROUND¿¿¿ 

 

On July 30, 2021, Plaintiffs Micaela Jaramillo Macias and Amelia Jaramillo initiated an auto accident lawsuit against Defendants Jose Manuel Gudino and Wendy Romero Diaz. The parties’ efforts to coordinate a deposition schedule resulted in setting Plaintiffs' depositions for February 6, 2024. (Doust Decl. ¶ 6, Exhibit C.) However, on February 5, 2024, Plaintiffs' counsel informed Defendants that Plaintiffs were unavailable on that date. (Doust Decl. ¶ 7.) Despite this, Defendants insisted on the deposition and appeared for the deposition. Plaintiffs, unsurprisingly, did not appear. (Doust Decl. ¶ 9.) Afterwards, the parties exchanged emails, but Plaintiffs’ counsel failed to respond to the email chain any further as of February 8, 2024. (Exhibit K.) Consequently, Defendants filed the present two motions to compel Plaintiffs' depositions. 

 

Legal Standard¿ 

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Any party may obtain any discovery of information, documents, land, property, or electronically stored information so long as the discoverable matter is not privileged, is relevant to the subject matter and can lead one to admissible evidence.¿(Code Civ. Proc. § 2017.010.)¿¿ 

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Code Civ. Proc., § 2025.450¿provides in pertinent part the following:¿¿¿ 

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“(a) 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.¿¿ 

 

Meet and Confer 

 

A motion to compel deposition under Code Civ. Proc., § 2025.450(a) requires meet and confer declaration under Section 2016.040.1 

 

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a¿serious attempt¿to obtain an informal resolution of each issue.”¿¿(Stewart v. Colonial Western Agency, Inc.¿(2001) 87 Cal.App.4th 1006, 1016.) This rule is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order....”¿¿(McElhaney v. Cessna Aircraft Co.¿(1982) 134 Cal.App.3d 285, 289.) “This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.”¿(Townsend v. Superior Court¿(1998) 61 Cal.App.4th 1431, 1435.)¿ “A determination of whether an attempt at informal resolution is adequate . . . involves the exercise of discretion.”¿(Stewart (2001) 87 Cal.App.4th at 1016.)¿ “The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.”¿(Id.)  

 

"Meet and confer" or "confer" means to communicate directly and discuss in good faith the issue(s) required under the particular Rule or order… such communication may take place by telephone. The mere sending of a written, electronic, or voice-mail communication, however, does not satisfy a requirement to "meet and confer" or to "confer." Rather, this requirement can be satisfied only through direct dialogue and discussion — either in a face to face meeting or in a telephone conversation. Phleger v. Countrywide Home Loans, Inc., No. C 07-1686 SBA, 5 (N.D. Cal. Dec. 24, 2007) 

 

On February 5, 2024, Plaintiffs notified defense counsel that the deposition would not proceed as scheduled due to Plaintiffs’ unavailability. (Doust Decl. ¶ 7.) Despite this notification, on February 6, 2024, defense counsel appeared for the deposition at the scheduled time and obtained a Certificate of Non-Appearance due to Plaintiffs' failure to appear. (Doust Decl. ¶ 9.) Following February 6, 2024, the parties exchanged several emails with the last email being Plaintiffs requesting to take Defendant's deposition before February 14. (Exhibit K.) Plaintiffs did not respond to this email and Defendants filed the present two motions. The Court finds that Defendants’ effort to meet and confer is insufficient. A moving party needs to demonstrate a¿serious attempt¿to meet and confer before filing a motion to compel. Email communication, while convenient, can sometimes be unreliable – in this day and age of receiving a barrage of emails on a daily basis, an email could be overlooked, or, even if seen and opened, another issue could intervene. Sufficient meet and confer requires either a phone call or a face-to-face meeting.  Defendant’s declaration has shown neither.  

 

Sanctions 

 

Both parties acted with substantial justification, therefore, the requests for sanctions are denied.