Judge: Lisa R. Jaskol, Case: 21STCV00319, Date: 2023-08-08 Tentative Ruling
Case Number: 21STCV00319 Hearing Date: August 8, 2023 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On January 5, 2021, Plaintiff Nico Sabenorio (“Plaintiff”) filed this action against Defendant Kyung H. Lee (“Defendant”) for vehicle negligence and negligence per se.
On June 23, 2022, Defendant filed an answer.
On April 4, 2023, Defendant filed a Motion to Motion to Compel Plaintiff’s Deposition to be heard on July 13, 2023. Plaintiff did not file an opposition.
On July 13, 2023, the Court continued the hearing on the motion to August 8, 2023.
Trial is currently scheduled for November 8, 2023.
PARTY’S REQUEST
Defendant requests that the Court compel Plaintiff to appear for a deposition within 10 days of the hearing on the motion. Defendant also requests that the Court impose sanctions totaling between $2,250.00 and $3,600.00 on Plaintiff.
LEGAL STANDARD
“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).)
A motion under Code of Civil Procedure section 2025.450, 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 the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b).)
Code of Civil Procedure section 2025.450, subdivision (g)(1) provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction 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.
Misuse of the discovery process includes "[f]ailing to respond or to submit to an authorized method of discovery" and "[m]aking or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (h).)
DISCUSSION
A. Efforts to schedule the deposition
On June 6, 2022, Defendant served Plaintiff with a notice of deposition scheduled for September 29, 2022. (Declaration of David Rodriguez (Rodriguez Dec.) ¶ 3.) The parties agreed to continue the deposition to January 10, 2023. (Rodriguez Dec. ¶¶ 6-7.) On October 25, 2022, Defendant served Plaintiff with a notice of deposition for January 10, 2023. (Rodriguez Dec. ¶ 8.)
On November 4, 2022, the parties agreed to continue Plaintiff’s deposition to March 2023. (Rodriguez Dec. ¶ 9.)
At least twice in January 2023, Defendant’s counsel asked Plaintiff’s counsel when counsel would produce Plaintiff for the March 2023 deposition. (Rodriguez Dec. ¶¶ 10-12.) Receiving no response in January or February, on March 1, 2023, Defendant served notice of a deposition scheduled for March 15, 2023. (Rodriguez Dec. ¶ 14.)
Plaintiff’s counsel responded via emails to the deposition notice, saying Plaintiff’s counsel was not available on March 15, 2023 and asking for dates in April. (Rodriguez Dec. ¶ 15 & Exh. M.)
In a March 14, 2023, email to Defendant’s counsel, Plaintiff’s counsel stated the following:
“We timely served the attached objection to this deposition due to the unavailability of counsel on 3.9.2023. We also informed your office on 2.15.2023, before the deposition was noticed, that Mr. McElfish was scheduled for trial and would not be available on 3.15.2023. He is engaged in trial in Van Nuys, Dept. M and is not available on March 15, 2023 for the noticed deposition. Under California Code of Civil Procedure §2025.410, any deposition taken after the service of a written objection shall not be used against the objecting party. Please confirm you will take this deposition off calendar. We can reschedule the deposition for April 2023.” (Exh. N to Rodriguez Dec.)
Defendant’s counsel refused to reschedule the deposition. (Rodriguez Dec. ¶ 15 & Exh. M.) Plaintiff did not appear at his deposition on March 15, 2023. (Rodriguez Dec. ¶ 17.)
B. Plaintiff served a valid objection to the March 15, 2023 deposition
When
a party fails to appear for a deposition, Code of Civil Procedure section
2025.450, subdivision (a) allows the Court to issue an order compelling the
party’s attendance at the deposition unless the party first “serv[ed] a valid
objection under Section 2025.410 . . . .”
Defendant did not provide a copy of Plaintiff’s objection with
Defendant’s moving papers. At
the hearing on July 13, 2023, the Court ordered Defendant to file and serve a
copy of the objection referenced in the March 14, 2023 email from Plaintiff’s
counsel contained in Exhibit N, including any proof of service attached to the
objection.
On July 18, 2023, Defendant filed Plaintiff’s objection with the Court. The objection includes a proof of service on Defendant’s counsel dated March 9, 2023. The Court finds the objection is valid and was not made for an improper purpose. The Court therefore denies Defendant’s motion to compel. (See Code Civ. Proc., § 2025.410.)
CONCLUSION
The Court DENIES Defendant Kyung H. Lee’s Motion to Compel Deposition of Plaintiff Nico Sabenorio.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.