Judge: Lee S. Arian, Case: 22STCV31117, Date: 2025-01-27 Tentative Ruling

Case Number: 22STCV31117    Hearing Date: January 27, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Legal Standard 

¿¿¿¿      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.)¿¿¿¿¿ 

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

“(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. 

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).) 

Background

On September 22, 2022, Plaintiff filed the present case alleging that Los Angeles Sheriff’s Department Deputy Brian Scott Bank acted negligently and recklessly while operating a police vehicle owned by the County of Los Angeles. Bank, driving at an excessive speed on the freeway, collided with the vehicle of Plaintiff Kelajae Kareem McClain, resulting in significant injuries.

On August 26, 2024, Plaintiff noticed the deposition of Defendant Brian Scott Bank for September 11, 2024. On September 4, 2024, Defendant served Plaintiff with a written objection, asserting that the deposition notice was to take place within 30 days of the October 8, 2024, trial date and beyond the discovery cut-off.

On September 23, 2024, trial was continued to January 28, 2025.

On October 31, 2024, Plaintiff served a notice of continued deposition of Defendant, setting it for November 15, 2024. On November 1, 2024, Defendant sent an email to Plaintiff’s counsel stating that he was scheduled to undergo back surgery the following week. (Exhibit 6.)

On November 11, 2024, Defendant served a written objection to the deposition of Sgt. Bank, specifically stating that Sgt. Bank was scheduled to undergo surgery and would be unable to appear for his deposition. (Exhibit 9.)

On November 22, 2024, Plaintiff requested medical documentation regarding Sgt. Bank’s surgery. (Exhibit 14.) On November 25, 2024, Defendant responded to Plaintiff’s request for medical documentation and objected based on privilege but offered to provide a declaration from Sgt. Bank if Plaintiff required one. (Exhibit 15.)

Plaintiff’s counsel did not respond to this email or request a declaration to confirm Sgt. Bank's medical leave and instead filed this motion on November 26, 2024.

Plaintiff now moves the Court to compel Defendant’s deposition. Defendant opposes. Trial is currently set for April 29, 2025.

Discussion

CCP § 2025.410  (a) provides that “If, after service of a deposition notice, …, without having served a valid objection under Section 2025.410, fails to appear for …, the party giving the notice may move for an order compelling the deponent's attendance and testimony, …

Although Defendant provided timely notice of Defendant’s unavailability prior to the deposition scheduled for November 15, 2024, his objection on that basis is not a basis for objection under CCP 2025.410.  Rather, CCP 2025.410 provides for objection on technical bases.  In the case of party unavailability, the Court expects parties to work together to schedule the deposition on a mutually convenient date.  And, if they are unable to do so, then the parties can seek court intervention.

Defendant appears to have sought to do the right thing, informing Plaintiff that Sgt. Bank would be available to testify in late December 2024, once he was expected to recover. (Reply at 4.)

Additionally, this is not a case where Defendant’s deposition was repeatedly postponed on the basis of medical issues. Defendant also provided a reasonable timeframe for Sgt. Bank’s recovery, indicating availability in December 2024, only one month after the originally noticed deposition date.

Plaintiff contends that Defendant failed to provide medical documentation regarding Sgt. Bank’s surgery. However, the record reflects that on November 25, 2024, Defendant offered to provide a declaration from Sgt. Bank to confirm the surgery, should Plaintiff require verification. Plaintiff did not respond to Defendant’s offer or request the declaration and instead filed the present motion to compel.

Plaintiff argues that Defendant was required to file a protective order, motion to quash, or motion to stay. Technically, Plaintiff is correct.  However, the Court finds that on the record here, in which Defendant provided sufficient time to move the deposition, offered a different deposition date, and offered to provide a declaration to support the medical need for the deposition to take place on another day, Defendant need not immediately engage the Court.  The Court’s various rules relating to civility is to encourage cooperation by the parties and to avoid unnecessary motion practice.  On the record here, the Court finds this motion at this time to be inconsistent with those rules and thus continues the motion 20 days.  The Court expects the parties to work cooperatively in those 20 says to schedule Defendant’s deposition such that a trial continuance is not necessary.  If the parties are unable to do so, the Court will hear the motion on the new date.

Accordingly, Plaintiff’s motion to compel is continued.  The Court denies both parties’ request for sanctions, finding the conduct of each to be substantially justified.

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’s 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.