Judge: Lisa R. Jaskol, Case: 22STCV11950, Date: 2024-04-08 Tentative Ruling
Case Number: 22STCV11950 Hearing Date: April 8, 2024 Dept: 28
Having considered the moving and opposition papers, the Court rules as follows.
BACKGROUND
On April 8, 2022, Plaintiff Kimberley Marie Elkerton (“Plaintiff”) filed this action against Defendants Brandon Lamahr Frison (“Frison”), California Coach Orange, Inc. (“Coach”), and Does 1-100 for negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence per se, assault and battery, and negligent hiring, retention and supervision.
On January 27, 2023, Plaintiff amended the complaint to include Defendants Bahaeddin Fawzi Hassan (“Bahaeddin Hassan”) as Doe 1 and Southside Towing (“Southside”) as Doe 2.
On June 14, 2023, Plaintiff amended the complaint to include Defendant Hadley Towing Equipment, Inc. (“Hadley”) as Doe 3.
On July 5, 2023, Coach, Bahaeddin Hassan, and Southside filed an answer and a cross-complaint against Cross-Defendants Frison, Mark Fawzi Hassan (“Mark Hassan”), Hadley, All American Towing Inland Empire, LLC (“All American”), Park Avenue Realty Investments, Inc. (“Park Avenue”), and Roes 1-10 for total equitable indemnity, contribution, equitable apportionment, and declaratory relief.
On July 25, 2023, Coach, Bahaeddin Hassan, and Southside filed an amended answer to Plaintiff’s complaint.
On September 6, 2023, the clerk entered Hadley’s default on the cross-complaint.
On September 11, 2023, Frison and All American filed (1) an answer to Plaintiff’s complaint, (2) an answer to the cross-complaint of Coach, Bahaeddin Hassan, and Southside, and (3) a cross-complaint against Cross-Defendants Laila Aaen (“Aaen”) and Roes 1-50 for equitable indemnity, apportionment of comparative negligence, and declaration relief.
On September 13, 2023, the clerk entered the defaults of Mark Hassan and Park Avenue.
On February 27, 2024, Frison and All American (“Moving Parties”) filed a motion to compel Plaintiff’s deposition and for sanctions, to be heard on April 8, 2024. On March 27, 2024, Plaintiff filed an opposition.
On March 19, 2024, the Court sustained Aaen’s demurrer to the cross-complaint filed by Frison and All American with 30 days leave to amend.
Trial is currently scheduled for July 8, 2024.
PARTIES’ REQUESTS
Moving Parties ask the Court to compel Plaintiff to appear for a deposition and to impose sanctions on Plaintiff.
Plaintiff asks the Court to deny the motion to compel.
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.
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(Code Civ. Proc., § 2025.450, subds. (a), (b), (g)(1).)
DISCUSSION
Moving Parties assert that, on February 8, 2024, they noticed Plaintiff’s deposition for February 28, 2024. (Dorenfeld Dec. ¶¶ 2-3.) Moving Parties have not provided a copy of the deposition notice.
Moving Parties also state that, on February 9, 2024, Plaintiff served an objection to the deposition notice. (Dorenfeld Dec. ¶ 4.) Moving Parties have not provided a copy of the objection.
On February 21, 2024, Moving Parties’ counsel sent Plaintiff’s counsel an email stating: “I am contacting you to request dates for deposition of your clients. Please provide dates by 12:00 p.m. on 2-22-24. If dates are not given, we will be filing a Motion to Compel.” (Dorenfeld Dec. ¶ 5 & exh. A.) According to Moving Parties, Plaintiff’s counsel did not provide dates by February 27, 2024, when Moving Parties filed this motion.
In response, Plaintiff’s counsel asserts that “no deposition notice was even provided herein.” (Partiyeli Dec. ¶ 3.) Plaintiff also asserts that her counsel “did, in fact, suggest alternative dates for the taking of the depositions, but such requests were rejected or ignored by Defendants’ attorney.” (Opposition p. 3.) Plaintiff has provided no evidence to support this assertion.
The Court denies the motion. Even assuming that Moving Parties served a deposition notice on February 8, 2024, Moving Parties admit that Plaintiff served an objection on February 9, 2024. Moving Parties do not challenge the validity of the objection. Therefore, Moving Parties have not shown that Plaintiff failed to attend a deposition without first serving a valid objection. (Code Civ. Proc., § 2025.450, subd. (a).) In addition, Moving Parties have provided no legal authority authorizing an order to compel a party’s deposition based on a six-day delay in responding to an email requesting alternative deposition dates.
The Court also denies Plaintiff’s request for sanctions.
CONCLUSION
The Court DENIES the motion of Defendant Brandon Lamahr Frison and Cross-Defendant All American Towing Inland Empire, LLC to compel the deposition of Plaintiff Kimberley Marie Elkerton and for sanctions.
The Court DENIES Plaintiff Kimberley Marie Elkerton’s request for sanctions.
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.