Judge Lisa K. Sepe-Wiesenfeld, Case Number: 22SMCV02351, Date: 2023-08-23 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 22SMCV02351, Date: 2023-08-23 Tentative Ruling

Case Number: 22SMCV02351 Hearing Date: August 23, 2023 Dept: N

This Motion: Plaintiff Marcia Rosenthal’s Motion to Compel the Deposition of Parham Sage.

BACKGROUND

Plaintiff Marcia Rosenthal brings this action with one claim for general negligence against Defendant Parham Sage and Myrian Amgar, whose employee allegedly allowed Defendants’ two large dogs to escape their residence without a leash despite prior notice that the dogs were dangerous. The dogs crossed onto Defendants’ neighbor’s property, where they attacked Plaintiff, knocking her down and fracturing her left hip.

TENTATIVE RULING

Plaintiff Marcia Rosenthal’s Motion to Compel the Deposition of Parham Sage is GRANTED. The deposition must take place within thirty (30) days of this order.

Plaintiff Marcia Rosenthal’s Request for Monetary Sanctions is DENIED.

Plaintiff Marcia Rosenthal to give notice.

DISCUSSION

Plaintiff Marcia Rosenthal (“Plaintiff”) moves the Court for an order to compel the deposition of Defendant Parham Sage (“Defendant”) on the ground that Defendant has failed to appear for deposition. Plaintiff represents that she served a notice of deposition on Defendant on May 26, 2023, which included document requests related to the incident, and Plaintiff’s counsel sent communication to defense counsel to confirm whether the date worked, but defense counsel only responded the day before the date of the scheduled deposition that Defendant would not appear. Counsel has not proposed alternative dates. (Mot., Hashemi Decl. ¶¶ 3-8.) Defendant opposes the motion on the ground that Plaintiff’s counsel represented that the deposition would be moved to a mutually convenient date, so Defendant served no objection, and thereafter the parties could not agree upon a date.

“If, after service of a deposition notice, a party to the action . . . , 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.” (Code Civ. Proc., § 2025.450, subd. (a).) 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” and “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.” (Code Civ. Proc., § 2025.450, subds, (b)(1), (b)(2).)

It is axiomatic that Plaintiff is entitled to take Defendant’s deposition, and Defendant does not so dispute. Further, Defendant concedes that he did not serve an objection to the deposition notice, has failed to appear for the deposition or serve a valid objection to the notice of deposition. Neither did Defendant provide an alternate date.

For the reasons stated, Plaintiff Marcia Rosenthal’s Motion to Compel the Deposition of Parham Sage is GRANTED. The deposition must take place within thirty (30) days of this order, unless the parties agree otherwise.

Code of Civil Procedure section 2025.450, subdivision (g)(1), provides that if a motion to compel a deposition is granted, the Court shall impose monetary sanctions “in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

The Court finds that sanctions are not proper here. Plaintiff’s counsel gave defense counsel assurances that the deposition would occur on a date convenient to Defendant, thus convincing Defendant that he did not need to file an objection to the date as the parties would meet and confer in good faith, and instead Plaintiff filed the present motion, choosing to meet and confer further after the motion had been filed rather than attempting to resolve the issue informally before resorting to court intervention. Additionally, the Court notes that Plaintiff provides no evidence that he took a notice of nonappearance at the deposition. Thus, the Court finds that sanctions are not warranted where the moving party failed to sufficiently resolve the dispute in good faith before filing a motion. For these reasons, Plaintiff Marcia Rosenthal’s Request for Monetary Sanctions is DENIED.