Judge Lee S. Arian, Case Number: 21STCV28557, Date: 2024-06-17 Tentative Ruling

Judge: Lee S. Arian, Case: 21STCV28557, Date: 2024-06-17 Tentative Ruling

Case Number: 21STCV28557 Hearing Date: June 17, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO COMPEL DEPOSITION; MOTION TO EXTEND TIME OF DEPOSITION; REQUESTS FOR SANCTIONS

Hearing Date: 6/17/24

CASE NO./NAME: 21STCV28557 MARIA ELENA ESPINOZA vs LUIS CORNEJO, et al.

Moving Party: Defendants Luis Cornejo and On Track Transportation

Responding Party: Plaintiff

Notice: Sufficient

Ruling: MOTION TO COMPEL DEPOSITION IS DENIED; MOTION TO EXTEND TIME OF DEPOSITION IS GRANTED; REQUESTS FOR SANCTIONS IS DENIED

Background

Defendants have taken Plaintiff’s deposition three times, but each session was cut short by Plaintiff and had to be rescheduled. When Defendants scheduled a fourth deposition, Plaintiff refused to attend. Defendants now move the Court to compel Plaintiff to attend her fourth deposition and to permit an additional five hours of deposition beyond the seven-hour time limit.

Legal Standard

Code Civ. Proc., § 2025.450

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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.¿¿¿¿¿

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(b) A motion under subdivision (a) shall comply with both of the following:¿¿¿¿¿

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.¿¿¿¿¿

(2) 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.

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, subd. (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, subd. (g)(2).)

Code of Civil Procedure Section 2025.290

Code of Civil Procedure Section 2025.290 requires courts to allow additional time, beyond the seven-hour limit, to depose a witness, unless the court, in its discretion, determines that the deposition should be limited for some reason. (Certainteed Corporation v. Sup. Ct. (2014) 222 Cal.App.4th 1053, 1062.)

Code of Civil Procedure § 2025.290 not only authorizes a judge to allow additional time to depose a witness in these circumstances, but requires the judge to do so, unless the judge determines that the deposition should be limited for another reason, such as the deponent's medical condition or to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, undue burden, or expense. (CCP § 2025.290(c); Certainteed, supra, 222 CA4th at 1062.)

Discussion

Plaintiff's sole argument in opposition to Defendants’ motion to compel is that Defendants did not fulfill the meet and confer requirement prior to filing the motion.

The Court disagrees. On April 11, 2024, Defendants requested to continue the deposition since it was terminated prematurely by Plaintiff. Plaintiff did not attempt to meet and confer, instead stating that if Defendants wanted to depose Plaintiff for the fourth time, they could file a regularly noticed motion, which Plaintiff would oppose. The email exchanges show that Defendants attempted to reach an informal resolution, but Plaintiff urged Defendants to file a motion. The Court finds that Defendants have met their meet and confer obligations prior to filing the motion. Furthermore, communications between the parties after the motion was filed showed that the parties seem to be at an impasse on whether Defendants are entitled to five additional hours of deposition or just two, as proposed by Plaintiff, beyond the statutory 7-hour limit.

Although on April 11, 2024, Defendants made an informal request for Plaintiff’s deposition, Defendants did not serve Plaintiff with a deposition notice for Plaintiff’s fourth deposition. A motion to compel deposition can only be made after service of a deposition notice. The Court cannot grant the present motion to compel deposition when no deposition notice was served on Plaintiff.

Time calculated for the 7-hour rule is time on the record. As for the length of the deposition, Plaintiff did not present any reason why the deposition should not be allowed to exceed the seven-hour limit. The opposition only contests the present motion on the basis of the meet and confer requirement. Given that Plaintiff is claiming in excess of $1 million in damages alleging traumatic brain injuries and the presence of a Spanish interpreter is slowing down the deposition, Defendants’ request for an additional five hours is reasonable and therefore granted.

The parties are to meet and confer on Plaintiff’s deposition dates given the new time limit. The motion is granted in part and denied in part.

The Court denies sanctions as requested by both parties, finding that both parties acted with substantial justification.

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¿¿PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.