Judge Lee S. Arian, Case Number: 22STCV29373, Date: 2024-08-13 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV29373, Date: 2024-08-13 Tentative Ruling

Case Number: 22STCV29373 Hearing Date: August 13, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTIONS TO COMPEL PMK DEPOSITIONS AND REQUESTS FOR SANCTIONS

Hearing Date: 8/13/24¿

CASE NO./NAME: 22STCV29373 RUBEN MELIKOFF vs SAFEWAY INC., et al.

Moving Party: Plaintiff

Responding Party: The Vons Company

Notice: Sufficient¿

Ruling: MOTIONS TO COMPEL EMPLOYEE AND PMK DEPOSITIONS AND REQUESTS FOR SANCTIONS ARE GRANTED

Background

On January 16, 2024, Plaintiff sent Defendant a notice for 4 employee depositions and a PMK (Person Most Knowledgeable) deposition relating to seven topics. On January 25, 2024, because of scheduling issues, defense counsel requested that the depositions be taken off calendar, which apparently occurred. On March 6, 2024, Plaintiff’s counsel followed up, requesting new dates for the same deponents, but received no response from Defendant.

On May 6, 2024, Plaintiff sent out an amended notice for the employee and PMK depositions to take place on May 20, 2024. On May 16, 2024, Defendant served objections to the amended deposition notices, stating that they would meet and confer on mutual dates. After not hearing from defense counsel regarding mutual dates, on June 25, 2024, Plaintiff sent an email to defense counsel advising counsel to provide available dates for the deponents to avoid motions to compel. The next day, Defendant stated that his client had been unavailable that week, and counsel would provide Plaintiff with deposition dates the following week. Plaintiff responded, giving Defendant until July 1 to provide the dates. However, no dates were provided by July 1, 2024, nor were any provided as of July 22, 2024, when the present motions were filed. Plaintiff now moves to compel Defendant's PMK depositions.

Legal Standard

California Code of Civil Procedure section 2025.450 provides:

(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.(

(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.

Discussion

Depositions

Defendant first argues that there is no basis for this motion because a valid objection has been filed. Although Defendant’s objection was timely filed, it is not “valid.” Pursuant to CCP § 2017.010, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action. Defendant’s objection, based on the unavailability of the deponents and Defendant’s attorney on the scheduled deposition date, does not meet the criteria for a valid objection. It neither challenges the relevancy of the deposition, raises issues related to privilege or privacy, nor does it relate to any deficiencies in the form or scope of the request.

Furthermore, while the Court recognizes that there may be scheduling conflicts that need to be resolved for a deposition to proceed, any scheduling issues should have been resolved in 7 months if the parties were genuinely committed to resolving them. Furthermore, Defendant’s counsel even assured Plaintiff that deponents’ availability would be provided within a week of June 26, 2024; however, no such information was forthcoming as of July 22, 2024, when the current motion was filed. Therefore, the Court finds Defendant’s objection to be invalid, particularly as Defendant failed to fulfill its commitment to meet and confer and to schedule the deposition on mutually agreeable dates, as stated in the objection.

Defendant then argues that there is no improper failure to appear, a condition required by CCP § 2025.450. However, the language of the statute provides that a party can compel a deposition when another party fails to appear for examination or fails to proceed with it. Defendant has failed to proceed with the deposition, repeatedly failing to provide an agreeable date for such examination to occur.

Defendant finally argues this motion should be denied for lack of meet and confer efforts. While Plaintiff could have been more proactive in its meet and confer efforts, it appears to the Court that Plaintiff did, make efforts to meet and confer and to work with Defendant to bring the requested depositions to fruition. Significantly, Defendant stated that his client would be unavailable that the week of June 25 but promised to provide Plaintiff with the deposition dates by the following week. Plaintiff allowed Defendant until July 1, 2024, the Monday of the next week, to provide these dates. Defendant did not provide the dates by July 1, 2024, nor by July 22, 2024, when the motion was filed. Plaintiff’s counsel did enough to meet and confer.

In sum, the depositions were initially noticed on January 16, 2024, more than seven months ago, and Defendant has failed to produce a deponent despite promises to provide dates for deposition. The Court grants the present motion and orders that the employee and PMK depositions be conducted within 14 days from today, thereby taking into account, the August 26, 2024, discovery cut-off.

Documents

The notice of deposition includes a demand for production of documents, and Defendant seeks an order compelling Plaintiff to produce all identified documents at her deposition. The moving papers fail to show good cause for production of the documents sought, as required by §2025.450(b)(1). There is no discussion of good cause, and therefore the Court declines to enter an order compelling Plaintiff to produce documents, but urges the parties to work together to resolve any issues concerning documents without court intervention.

Sanctions

The Court finds sanctions appropriate under the circumstances, as Plaintiff reached out to Defendant on multiple occasions to obtain the deponents’ availability, to which none was provided. Plaintiff requests $1,669.95 in attorney’s fees, which the Court finds reasonable. Defendant and its counsel are jointly and severally liable for sanctions in the amount of $1,669.95, payable to Plaintiff within 30 days from today.

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.