Judge: Lisa R. Jaskol, Case: 22STCV06380, Date: 2024-09-18 Tentative Ruling
Case Number: 22STCV06380 Hearing Date: September 18, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On February 22, 2022, Plaintiff Mascelys Luna (“Plaintiff”) filed this action against Defendants Nelson Aroche (“Aroche”), Jessenia Beltran (“Beltran”), and Does 1-50 for negligence.
On December 19, 2023, Aroche and Beltran (“Defendants”) filed an answer.
On August 13, 2024, Defendants filed a motion to compel Plaintiff’s deposition and for sanctions. The motion was set for hearing on September 18, 2024. Plaintiff has not filed an opposition.
Trial is currently scheduled for March 4, 2025.
PARTIES’ REQUESTS
Defendants ask the Court to compel Plaintiff to appear for a deposition and to impose sanctions on Plaintiff and her counsel.
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.
“(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.
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(Code Civ. Proc., § 2025.450, subds. (a), (b), (g)(1).)
DISCUSSION
On June 19, 2024, Defendants noticed Plaintiff’s remote deposition for July 26, 2024 at 10:00 a.m. The deposition notice included a request to produce documents. The parties later agreed to reschedule the deposition for 11:00 a.m.
On July 26, 2024, Plaintiff and Plaintiff’s counsel did not appear for the deposition. Defendants took a certificate of non-appearance.
Defendants
move to compel Plaintiff’s appearance at a deposition. However, Defendants have not stated whether
Plaintiff served a valid objection to the deposition notice. (See Code Civ. Proc., § 2025.450, subd. (a).) Although Defendants assert in their motion
that “[n]o notice of the prospective non-appearances was ever given and no
explanation for Plaintiff’s failure to appear has ever been communicated to
Defendants’ attorneys” (Motion p. 4), Defendants have not included this assertion
in their supporting declaration.
In addition, Defendants have not provided a meet and confer declaration under Code of Civil Procedure section 2016.040 or a declaration stating that Defendants' counsel contacted Plaintiff's counsel to inquire about Plaintiff's nonappearance at the deposition. (See Code Civ. Proc., § 2025.450, subd. (b)(2).)
The Court denies the motion.
CONCLUSION
The Court DENIES the motion of Defendants Nelson Aroche and Jessenia Beltran to compel the deposition of Plaintiff Mascelys Luna.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.