Judge: Lynette Gridiron Winston, Case: 22PSCV01829, Date: 2024-03-27 Tentative Ruling

Case Number: 22PSCV01829    Hearing Date: March 27, 2024    Dept: 6

CASE NAME:  Sophia Soli v. Polaris Industries, Inc., et al. 

Plaintiff’s Motion to Compel Deposition of Seidner Enterprises, LLC 

TENTATIVE RULING 

The Court GRANTS Plaintiff’s motion to compel deposition of Seidner Enterprises, LLC. The person most qualified for Seidner Enterprises, LLC must appear for deposition within 30 days of the Court’s order, and produce all documents requested in connection therewith. 

The Court further GRANTS Plaintiff’s request for monetary sanctions in the reduced amount of $1,060.00. Seidner and its counsel must pay said monetary sanctions to counsel for Plaintiff within 30 days of the Court’s order. 

              Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a products liability action. On November 15, 2022, plaintiff Sophia Soli (Plaintiff) filed this action against defendants Polaris Industries, Inc., Seidner Enterprises, LLC (Seidner), and Does 1 to 50, alleging causes of action for strict products liability and negligence. 

On March 7, 2023, Seidner filed a cross-complaint against Roes 1 to 25 for declaratory relief, equitable indemnity, contribution, and implied indemnity. 

On February 16, 2024, Plaintiff moved to compel the deposition of Seidner Enterprises, LLC. On March 14, 2024, Seidner opposed the motion. On March 18, 2024, Plaintiff replied. 

LEGAL STANDARD 

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. 

(Code Civ. Proc., § 2025.450, subd. (a).) 

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. 

(Code Civ. Proc., § 2025.450, subd. (g)(1).) 

DISCUSSION 

Meet and Confer 

Code of Civil Procedure section 2025.450, subdivision (b)(2), does not require a meet-and-confer declaration where there was a nonappearance, but it does require a declaration indicating that the deposing party inquired about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).) Counsel for Plaintiff indicates having called and spoken with counsel for Seidner regarding the nonappearance at issue. (Cloyd Decl., ¶ 5, subd. (c).) The Court finds this sufficient. 

Summary of Arguments 

Plaintiff indicates having served a notice of deposition on Seidner on December 26, 2023, for a deposition on February 6, 2023. Plaintiff’s counsel contends he contacted counsel for Seidner on January 25, 2024, to confirm Seidner’s deposition attendance. Seidner’s counsel indicated it did not work and that he would provide Plaintiff’s counsel with new dates. Plaintiff’s counsel contends he followed up again shortly before the deposition about the new dates, but to no avail. Seidner did not appear for the deposition. Plaintiff’s counsel contends he contacted counsel for Seidner to inquire about the nonappearance, who promised to provide Seidner’s availability by the end of the week, but to no avail. Plaintiff’s counsel warned that he would seek a motion to compel with sanctions, to which counsel for Seidner responded that Plaintiff’s deposition notice was absurd. 

In opposition, Seidner contends Plaintiff’s deposition notice is overly broad and does not relate to the scope of this case. Seidner contends the scope of questions and documents sought are better suited for Defendant Polaris, who manufactured the product in question, rather than Seidner. Seidner then contends Plaintiff did not adequately meet and confer before filing this motion, while acknowledging that Seidner could have formally objected to the deposition notice but did not do so. Seidner further contends the sanctions are not warranted because Plaintiff’s motion failed to provide proper notice and is defective, and Seidner has legitimate objections and concerns that need to be addressed through additional meeting and conferring. 

Analysis 

The Court finds Plaintiff’s motion to be well taken. Plaintiff served the deposition notice on December 26, 2023, which is well in advance of the February 6, 2024 deposition date. (Cloyd Decl., Ex. 3; Code Civ. Proc., § 2025.270, subd. (a).) Counsel for Plaintiff contacted counsel for Seidner regarding the deposition date and counsel for Seidner promised to provide available dates for the deposition. (Cloyd Decl., ¶ 5; Ex. 4.) Seidner did not serve any objections to the notice of deposition. (Cloyd Decl., ¶ 6; Opp., 7:7-8.) Seidner did not appear for the deposition either. (Cloyd Decl., ¶5, subd. (c).) Counsel for Plaintiff contacted counsel for Seidner by phone to inquire about the nonappearance. (Id.) Counsel for Plaintiff otherwise attempted to resolve the nonappearance issue without bringing this motion, but Seidner refused. (Id., ¶ 5, subds. (d)-(e).) The Court further finds Seidner’s arguments regarding the scope of the deposition notice and requests for production of documents to be unavailing, given Seidner’s admitted failure to serve any objections. (Cloyd Decl., ¶ 6; Opp., 7:7-8; Code Civ. Proc., § 2025.410, subd. (a).) Accordingly, the Court GRANTS Plaintiff’s motion to compel Seidner’s deposition attendance. To the extent the designated witness has no knowledge or information regarding the categories described in the notice, such witness can testify to such under oath. 

With respect to monetary sanctions and the adequacy of the notice, the Court finds Plaintiff gave Seider and its counsel, Mr. Gutierrez, adequate notice. The notice identifies both Seidner and its counsel in requesting monetary sanctions. (Notice, 1:26-2:1; Code Civ. Proc., § 2023.040.) To the extent Mr. Gutierrez takes issue with Plaintiff having gotten his last name wrong, what is clear to the Court is that Mr. Gutierrez understood that the request for monetary sanctions was directed to both him and Seidner. (Opp., 8:8-10.) 

The Court further finds unpersuasive Seidner’s arguments that Plaintiff did not engage in adequate meet and confer efforts. The law only required Plaintiff to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).) Plaintiff’s counsel attempted to confirm Seidner’s appearance in advance and Mr. Gutierrez indicated he would provide new dates but never did. (Cloyd Decl., ¶ 5, Ex. 4.) Plaintiff’s counsel attempted to resolve this dispute by talking with Mr. Gutierrez on the phone regarding the nonappearance and even contacted him again a week later to apprise him of Plaintiff’s intent to move to compel Seidner’s deposition attendance and seek monetary sanctions. (Id.) It was only after Plaintiff’s counsel raised the issue of filing a motion to compel did Seidner’s counsel raised any issues with the deposition notice or the documents requested therein. The Court finds Plaintiff’s efforts were more than sufficient here. 

Accordingly, the Court GRANTS Plaintiff’s request for monetary sanctions, albeit in the reduced amount of $1,060.00, comprised of 1.5 hours preparing the motion and reply, 0.5 hours for appearing at the hearing on the motion, for a total of 2.0 hours, multiplied by the hourly rate of $500.00, plus $60.00 for the motion filing fee. 

CONCLUSION 

The Court GRANTS Plaintiff’s motion to compel deposition of Seidner Enterprises, LLC. The person(s) most qualified for Seidner Enterprises, LLC must appear for deposition within 30 days of the Court’s order, and produce all responsive documents requested in connection therewith that are in its possession, custody or control. 

The Court further GRANTS Plaintiff’s request for monetary sanctions in the reduced amount of $1,060.00. Seidner and its counsel must pay said monetary sanctions to counsel for Plaintiff within 30 days of the Court’s order. 

              Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.