Judge: Lisa R. Jaskol, Case: 21STCV38201, Date: 2024-02-15 Tentative Ruling
Case Number: 21STCV38201 Hearing Date: February 15, 2024 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On October 15, 2021, Plaintiff Connie Romero (“Plaintiff”) filed this action against Defendants Home Depot U.S.A., Inc. (“Home Depot”), Juan Mutaz, and Does 1-20 for general negligence and premises liability.
On November 17, 2021, Home Depot filed an answer.
On
October 31, 2023, Plaintiff filed a motion to compel the deposition of Home
Depot’s person most knowledgeable to be heard on February 9, 2024. On November 1, 2023, Plaintiff
filed an amended motion. On February 1,
2024, Home Depot filed an opposition. On February 5, 2024, Plaintiff filed a
reply.
Trial is currently set for April 8, 2024.
PARTIES’ REQUESTS
Plaintiff asks the Court to compel Home Depot to produce its person most knowledgeable for a deposition.
Home Depot asks the Court to 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 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.
* * *
“(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.
“(2) On motion of any other 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 under Chapter 7 (commencing with Section 2023.010) in favor of that party 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).)
DISCUSSION
On June 6, 2023, Plaintiff noticed the deposition of Home Depot’s person most knowledgeable for July 31, 2023. The deposition did not take place for reasons the parties do not address.
On September 27, 2023, Plaintiff noticed the deposition of Home Depot’s person most knowledgeable for October 12, 2023. Home Depot’s person most knowledgeable and its counsel did not appear for the October 12, 2023 deposition and Plaintiff took a certificate of nonappearance.
Home Depot argues (1) Plaintiff's motion is moot because Home Depot has given Plaintiff possible dates for the deposition of its person most knowledgeable, (2) Home Depot served a timely objection to the September 27, 2023 deposition notice, (3) Plaintiff did not satisfy her meet and confer obligations before filing the motion to compel.
The motion is not moot because the deposition has not yet taken place. Moreover, Home Depot’s service of an objection to the deposition notice did not stay the taking of the deposition. (See Code Civ. Proc., § 2025.410, subd. (b) [“Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one”]; Code Civ. Proc., § 2025.410, subd. (c) [“In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. . . . The taking of the deposition is stayed pending the determination of this motion”].) Home Depot did not move to stay the deposition and quash the deposition notice.
Plaintiff’s motion to compel does not include a meet and confer declaration or a declaration showing that, when Home Depot’s person most knowledgeable failed to attend the October 12, 2023 deposition, Plaintiff contacted Home Depot to inquire about the nonappearance. (See Code Civ. Proc., § 2025.450, subd. (b)(2).) Plaintiff’s reply, however, includes a declaration discussing meet and confer efforts that took place after Plaintiff filed her motion.
Discovery will remain open for the purpose of hearing this motion and for the purpose of scheduling and attending the deposition of Home Depot’s person most knowledgeable.
CONCLUSION
The Court orders Plaintiff Connie Romero, Defendant Home Depot U.S.A., Inc., and/or their counsel to meet and confer and attempt to schedule the deposition of Home Depot U.S.A., Inc.’s person most knowledgeable on or before March 19, 2024. If the parties schedule and conduct the deposition on or before March 19, 2024, Plaintiff is ordered to take the motion off calendar. If the issue remains unresolved, the Court will rule on the motion to compel on March 20, 2024.
Discovery will remain open for the purpose of hearing this motion and for the purpose of scheduling and attending the deposition of Home Depot’s person most knowledgeable.
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.