Judge: Lisa R. Jaskol, Case: 22STCV12757, Date: 2024-02-29 Tentative Ruling
Case Number: 22STCV12757 Hearing Date: February 29, 2024 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On April 15, 2022, Plaintiffs Maria Del Carmen Ramos (“Ramos”) and Teodoro Ramos Sanchez (“Sanchez”) filed this action against Defendants AA Gonzalez Inc. (“Gonzalez”), Jose Almanzar Orozco (“Almanzar”), and Does 1-100 for motor vehicle tort and general negligence.
On July 31, 2023, Gonzalez filed an answer. On January 25, 2024, Almanzar filed an answer.
On January 29, 2024, Gonzalez filed a motion to compel Plaintiffs’ depositions and for sanctions, to be heard on February 29, 2024. On February 15, 2024, Plaintiffs filed an opposition. On February 21, 2024, Gonzalez filed a reply.
Trial is currently scheduled for April 12, 2024.
PARTIES’ REQUESTS
Gonzalez asks the Court (1) to compel Plaintiffs to appear for depositions and (2) to impose sanctions on Plaintiffs.
Plaintiffs ask the Court (2) to deny the motion and (2) to impose sanctions on Gonzalez.
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.
* * *
(Code Civ. Proc., § 2025.450, subds. (a), (b), (g)(1).)
DISCUSSION
On December 4, 2023, Gonzalez served notices that Plaintiffs’ depositions would take place on January 2, 2024, and January 3, 2024. On December 28, 2023, Plaintiffs’ counsel informed Defendants’ counsel that Plaintiffs would not appear for the depositions because Defendants’ counsel had not returned the notice and acknowledgement for Almanzar. Defendants’ counsel attempted to meet and confer with Plaintiffs’ counsel but received no response before filing this motion.
Gonzalez argues the Court should compel Plaintiffs to appear for their depositions because Gonzalez properly noticed the depositions and Plaintiffs did not serve valid objections to the deposition notices.
Plaintiffs argue that the case was not at issue when Gonzalez served the deposition notices because Almanzar had not returned the notice of acknowledgement and receipt. The argument is a non sequitur. Gonzalez, not Almanzar, served the deposition notices, and Gonzalez had filed an answer on July 31, 2023. Plaintiffs cite no authority for the proposition that a case must be “at issue” with respect to all defendants before an answering defendant may propound discovery. (See, e.g., Code Civ. Proc., § 2025.210, subd. (a) [“The defendant may serve a deposition notice without leave of court at any time after that defendant has been served or has appeared in the action, whichever occurs first” (emphasis added)].)
Plaintiffs also argue that Gonzalez noticed the depositions unilaterally. But Plaintiffs waived that objection by failing to “serve[ ] a written objection specifying that error or irregularity . . . .” (Code Civ. Proc., § 2025.410, subd. (a).)
Finally, Plaintiffs assert that, after Gonzalez filed this motion, they proposed dates in March 2024 for their depositions. In response, Gonzalez offered to take the motion to compel off calendar if Plaintiffs appeared for deposition before the hearing (set for February 29, 2024). Plaintiffs’ counsel was not available for a deposition before that date.
The Court grants Gonzalez’s motion and orders Plaintiffs to appear for their depositions within 20 days of the hearing on this motion.
After hearing argument at the February 29, 2024 hearing, the Court concludes that an award of sanctions against Plaintiffs would be unjust. Therefore, the Court denies Gonzalez's request for sanctions.
CONCLUSION
The Court GRANTS Defendant AA Gonzalez Inc.’s motion to compel Plaintiffs Maria Del Carmen Ramos and Teodoro Ramos Sanchez to attend their depositions. The Court orders Plaintiffs Maria Del Carmen Ramos and Teodoro Ramos Sanchez to appear for deposition within twenty days of the hearing on this motion. Defendant AA Gonzalez Inc. is ordered to make any necessary arrangements to ensure that the depositions take place by this deadline.
The Court DENIES Defendant AA Gonzalez Inc.’s request for sanctions.
The Court DENIES the request for sanctions of Plaintiffs Maria Del Carmen Ramos and Teodoro Ramos Sanchez.
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.