Judge: Lisa R. Jaskol, Case: 21STCV37342, Date: 2024-01-11 Tentative Ruling

Case Number: 21STCV37342    Hearing Date: January 11, 2024    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On October 12, 2021, Plaintiff Daniel Macias Martinez (“Plaintiff”) filed this action against Defendants Gerry M. Murtagh (“Defendant”) and Does 1-50 for negligence—Labor Code section 3700 et seq., negligence per se, premises liability, and general negligence. 

On October 19, 2022, Defendant filed an answer and a cross-complaint against Cross-Defendants Burgmeier Construction, Inc. and Roes 1-20 for indemnity and contribution. 

On December 13, 2023, Defendant filed a motion to compel Plaintiff’s appearance at deposition, to be heard on January 11, 2024. On December 28, 2023, Plaintiff filed an opposition. On January 3, 2024, Defendant filed a reply. 

Trial is currently scheduled for March 15, 2024. 

PARTIES’ REQUESTS 

Defendant requests that the Court compel Plaintiff to appear for his deposition on February 5, 2024, at 10:00 a.m. via Zoom or on another mutually convenient date and time within thirty days of the date of the hearing of the motion.  Defendant also requests that the Court impose $660.00 in sanctions on Plaintiff. 

Plaintiff requests that the Court deny the motion. 

LEGAL STANDARD 

Code of Civil Procedure section 2025.450 provides in part: 

“(a) 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. 

“(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. 

* * *
“(g) (1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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. . . .” 

(Code Civ. Proc., § 2025.450, subds. (a), (b), (g)(1).) 

DISCUSSION 

On February 28, 2023, Defendant served a notice to take Plaintiff’s deposition on March 31, 2023.  On March 21, 2023, Plaintiff’s counsel’s office informed Defendant’s counsel: “[W]e will be taking Plaintiff’s deposition on 3/31 off calendar . . . . Plaintiff will be produced for deposition once defendant’s deposition has been taken.”  (Powers Dec. ¶ 5; exh. B.)  Defendant’s counsel agreed to take the deposition off calendar.  (Nalbandyan Dec. ¶ 2; see Reply p. 2 [“Defendant agreed to cancel and reschedule the previously noticed depositions of Plaintiff upon request”].) 

On August 1, 2023, Defendant served a second deposition notice scheduling Plaintiff’s deposition for August 21, 2023. (Powers Dec. ¶ 7.)  On August 11, 2023, Plaintiff’s counsel served an objection that the deposition was noticed unilaterally.  (Powers Dec. ¶ 8.)  Defendant’s counsel requested dates to re-set the deposition but Plaintiff’s counsel did not respond.  (Powers Dec. ¶ 9.)  Plaintiff did not appear for the August 21, 2023 deposition.  (Powers Dec. ¶ 10.) 

On September 25, 2023, Defendant served a third deposition notice scheduling Plaintiff’s deposition for November 13, 2023. (Powers Dec. ¶ 11.)  On November 8, 2023 Plaintiff’s counsel served an objection that the deposition was noticed unilaterally. (Powers Dec. ¶ 12.)  On November 9, 2023, Defendant’s counsel requested dates for Plaintiff’s deposition.  The same day, Plaintiff’s counsel responded, “Jackeline from our office will respond with dates in December.”  (Nalbandyan Dec. ¶ 5 & exh. 4.)  On December 13, 2023, Defendant filed this motion. 

Defendant has not satisfied the requirements for relief under Code of Civil Procedure section 2025.450.  Defendant’s counsel agreed to take the first deposition off calendar.  Plaintiff served objections served on August 11, 2023 and November 8, 2023 to the second and third deposition notices.  Defendant does not argue or show that Plaintiff’s objections were not valid.  Therefore, Defendant has not shown that Plaintiff failed to appear for a deposition “after service of a deposition notice . . . without having served a valid objection under Section 2025.410 . . . .”  (Code Civ. Proc., § 2025.450, subd. (a).) 

The Court denies the motion. 

CONCLUSION 

          The Court DENIES Defendant Gerry M. Murtagh’s motion to compel Plaintiff Daniel Macias Martinez to attend his deposition.  The Court denies Defendant's request for sanctions. 

          Moving party is ordered to give notice of these rulings. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.