Judge: Lisa R. Jaskol, Case: 21STCV32954, Date: 2024-02-01 Tentative Ruling

Case Number: 21STCV32954    Hearing Date: February 1, 2024    Dept: 28

Having considered the moving and late-filed opposition papers, the Court rules as follows. 

BACKGROUND 

On September 7, 2021, Plaintiff Veronika Hoffman (“Plaintiff”) filed this action against Defendants City of Los Angeles (“City”) and Does 1-25 for premises liability.  On December 19, 2022, Plaintiff amended the complaint to include Defendant Encino Towers, LLC as Doe 1.  On January 13, 2023, Plaintiff amended the complaint to include Defendant 4M Investment Corporation as Doe 2. 

On January 27, 2022, the City filed an answer and a cross-complaint against Cross-Defendants Roes 1 to 20 for indemnity, apportionment of fault, and declaratory relief.  On June 9, 2022, the City amended the cross-complaint to include Cross-Defendant Towers, LLC as Roe 1.  On June 13, 2022, the City amended the cross-complaint to change the name of Cross-Defendant Towers, LLC, which was incorrect, to Encino Towers, LLC, the correct name.  On February 6, 2023, the City amended the cross-complaint to include Cross-Defendant 4M Investment Corporation as Roe 2.  On September 13, 2023, 4M Investment Corporation filed an answer to the City’s cross-complaint. 

On March 6, 2023, Defendant 4M Investment Corporation filed an answer to Plaintiff’s complaint and a cross-complaint against Cross-Defendants Roes 1-100 for indemnification, apportionment of fault, declaratory relief, express indemnity, and breach of contract. 

On September 6, 2023, the City filed a motion to compel Plaintiff’s deposition to be heard on February 1, 2024.  On January 31, 2024, Plaintiff filed a late opposition. 

Trial is currently scheduled for May 21, 2024. 

PARTIES’ REQUESTS 

The City requests that the Court compel Plaintiff to appear for a deposition. 

Plaintiff requests that the Court deny the motion. 

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. 

DISCUSSION 

The City initially noticed Plaintiff’s deposition for September 7, 2022.  The City re-noticed the deposition for December 29, 2022, after the Court granted Plaintiff’s counsel’s motion to be relieved as counsel.  Plaintiff retained new counsel, who asked the City to reschedule the deposition.  The City agreed and served a deposition notice for March 20, 2023.  All counsel then agreed to reschedule this deposition for April 17, 2023.  Plaintiff’s counsel cancelled this deposition.

On June 12, 2023, the City noticed Plaintiff’s deposition for July 17, 2023.  Plaintiff did not object to the deposition notice and did not appear for the deposition.  The City took a certificate of non-appearance. 

In Plaintiff’s late-filed opposition, she argues that the City’s motion does not include a meet and confer declaration, which Code of Civil Procedure section 2025.450, subdivision (a) requires.  Plaintiff also asks the Court to excuse the opposition's late filing, asserting that Plaintiff’s counsel agreed to set Plaintiff’s deposition for a date certain and counsel mistakenly believed the City would take the motion off calendar.  Plaintiff states that her deposition is scheduled for February 12, 2024. 

The Court exercises its discretion to consider Plaintiff’s late-filed opposition and denies the City’s motion.  The City has not complied with the meet and confer requirement and Plaintiff’s counsel has represented to the Court that Plaintiff’s deposition is scheduled for February 12, 2024.  The City may renew this motion if Plaintiff does not attend the deposition. 

CONCLUSION 

The Court DENIES without prejudice the City of Los Angeles’s motion to compel the deposition of Plaintiff Veronika Hoffman. 

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.