Judge: Lisa R. Jaskol, Case: 22STCV20259, Date: 2024-07-16 Tentative Ruling
Case Number: 22STCV20259 Hearing Date: July 16, 2024 Dept: 28
Having considered the moving, opposition, reply, and supplemental papers, the Court rules as follows.
BACKGROUND
A. Case number 22STCV20259
On June 21, 2022, Plaintiff David Duet (“Duet”) filed a complaint against Defendants LA Futebol Indoor Soccer Facility and Does 1-20 for general negligence and premises liability. (Case number 22STCV20259.)
On August 24, 2022, Duet filed a first amended complaint against Defendants LA Futebol Indoor Soccer Facility, Rider Bladimir Amaya, 1029 F and F Washington Property, LLC, Faramarz Far Shaham, Fariborz “Sean” Shaham and/or and Does 1-20 for general negligence and premises liability.
On February 1, 2023, Defendants 1029 F&F Washington Property, LLC, Faramarz Far Shaham, and Fariborz “Sean” Shaham filed an answer and a cross-complaint against Cross-Defendants Rider Amaya, LA Futebol Indoor Soccer Facility, and Roes 1-25 for implied indemnity, contribution, apportionment of fault, declaratory relief for comparative fault, negligence, express indemnity, and breach of contract.
On April 5, 2023, the Court dismissed Defendants Faramarz Far Shaham and Fariborz “Sean” Shaham from Duet's complaint at Duet’s request.
On April 21, 2023, Defendants and Cross-Complainants 1029 F&F Washington Property, LLC, Faramarz Far Shaham, and Fariborz “Sean” Shaham amended their cross-complaint to include Cross-Defendant Elba Luz Martinez dba Futebol Indoor Soccer Facility as Roe 1.
On April 28, 2023, Duet amended the first amended complaint to include Defendant Elba Luz Martinez, individually and doing business as Futebol Indoor Soccer Facility, as Doe 1.
On October 9, 2023, Defendant Elba Luz Martinez, individually and dba Futebol Indoor Soccer Facility, filed an answer to the first amended complaint.
On March 14, 2023, Plaintiff New York Marine and General Insurance Company ("New York Marine") filed a complaint against Defendants LA Futebol Indoor Soccer Facility, Rider Bladimir Amaya, 1029 F & F Washington Property, LLC, Faramarz Far Shaham, Fariborz “Sean” Shaham, and Does 1-50 for general negligence, premises liability, and subrogation under Labor Code section 3850 et seq. (Case number 23STCV05582.)
On June 2, 2023, New York Marine amended its complaint to include Defendant Elba Luz Martinez dba Futebol Indoor Soccer Facility as Doe 1.
On June 26, 2023, Defendant 1029 F&F Washington Property, LLC, filed an answer.
On July 28, 2023, Defendant Elba Luz Martinez dba Futbol Indoor Soccer Facility filed an answer.
On August 2, 2023, the Court dismissed Defendants Rider Bladmir Amaya, Faramarz Far Shaham, and Fariborz “Sean” Shaham from the complaint without prejudice at New York Marine’s request.
C. The Court relates and consolidates the cases
On June 7, 2023, the Court found that case numbers 22STCV20259 and 23STCV05582 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 22STCV20259 became the lead case. The cases were assigned to Department 28 at the Spring Street Courthouse for all purposes.
On February 26, 2024, the Court consolidated the cases for all purposes based on the parties’ stipulation. Case number 22STCV20259 remained the lead case.
Trial is currently scheduled for December 30, 2024.
D. This motion
On March 21, 2024, Defendant 1029 F&F Washington Property LLC (“Moving Defendant”) filed a motion to compel Duet’s attendance at a deposition and for sanctions. The motion was set for hearing on May 28, 2024. The Court continued the hearing to July 16, 2024. On April 17, 2024, Duet filed an opposition. On May 10, 2024, Moving Defendant filed a reply. On May 20, 2024, Duet's counsel filed a declaration supporting Duet's opposition to the motion.
PARTIES’ REQUESTS
Moving Defendant asks the Court to compel Duet to appear for his deposition and to impose sanctions on Duet.
Duet 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.
“(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
Moving Defendant contends that Duet has repeatedly failed to attend his deposition, requiring the Court’s intervention.
In his opposition, Duet admits that he did not attend depositions scheduled for February 21, 2024 and March 12, 2024 because his medical and personal situation deteriorated, he lost his housing, and he could not communicate with his counsel. The opposition states, “it is believed that [Duet] is no longer capable physically or mentally/emotionally to handle his personal and legal affairs.” (Opposition p. 6.) Invoking the doctrine of equitable tolling, Plaintiff asks the Court to deny the motion, to give Plaintiff “time to regain the ability to prosecute his action,” and to deny the request for sanctions.
In a supplemental declaration dated May 20, 2024, Duet’s counsel stated that co-counsel located Duet at a hospital and the City has approved Duet for housing. Counsel anticipated that by “mid to late June, [Duet] will be ready, willing and able to proceed with a deposition and cooperate in the prosecution of the above-referenced matter.” (Cheren dec. ¶ 9.) The parties have not informed the Court if Duet’s deposition took place in June.
The Court grants the motion and orders Duet to attend his deposition by August 15, 2024. The Court denies Moving Defendant’s request for sanctions, finding that imposition of sanctions against Duet would be unjust.
CONCLUSION
The Court GRANTS Defendant 1029 F&F Washington Property LLC’s motion to compel Plaintiff David Duet to attend his deposition. The Court orders Plaintiff David Duet to attend his deposition on a mutually agreeable date no later than August 15, 2024.
The Court DENIES Defendant 1029 F&F Washington Property LLC’s request for sanctions.
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.