Judge Lynette Gridiron Winston, Case Number: 23PSCV00781, Date: 2023-12-18 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV00781, Date: 2023-12-18 Tentative Ruling

The Court DENIES the motion to compel the deposition of Plaintiff and the corresponding request for monetary sanctions.

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

This is a premises liability action. On March 15, 2023, plaintiff Zanay Herrera (Plaintiff) filed this action against defendants Starbucks Corporation, The Vons Companies, Inc. (Vons), Albertsons Companies, Inc., Cerberus Capital Mangement [sic] LP, La Verne Commons LLC (collectively, Defendants) and Does 1 to 50, alleging causes of action for premises liability and general negligence.

On November 20, 2023, Vons filed a motion to compel the deposition of Plaintiff. On December 5, 2023, Plaintiff opposed the motion. On December 11, 2023, Vons replied.

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.

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.

Vons brings this motion to compel Plaintiff’s deposition following three failed attempts to depose Plaintiff. Vons indicates that it has tried on many occasions to secure a mutually agreeable date for Plaintiff’s deposition, but to no avail, so Vons went ahead with noticing the depositions. Plaintiff objected to the first two depositions and advised Vons that the third deposition could not go forward, but then offered a date in late December and two dates in January as alternate dates. (Lewis Decl., ¶¶ 5-12, Exs. A-H.) Vons contends Plaintiff’s refusal to submit to deposition is grounds for an order compelling Plaintiff to submit to a deposition in this matter. The Court disagrees.

First, although not mentioned in Plaintiff’s opposition, the Court notes that the declaration Vons submitted in support of this motion does not indicate the parties attempted to meet and confer before Vons brought this motion or that it contacted Plaintiff to inquire about a nonappearance, as is required under Code of Civil Procedure section 2025.450, subdivision (b)(2). (Code Civ. Proc., § 2025.450, subd. (b)(2).) While Vons’ declaration sets forth the parties’ actions with respect to the attempted depositions, it says nothing about meeting and conferring with each other regarding this motion to compel or that Vons contacted counsel for Plaintiff regarding Plaintiff’s nonappearance.

Second, Plaintiff offered three alternative dates for Plaintiff’s deposition, (Lewis Decl., ¶ 12, Ex. H), but Vons completely skips over that fact, simply contending instead that Plaintiff failed or refused to attend her deposition. It is unclear why these alternative proposed dates were unacceptable to Vons and why Vons decided this motion to compel was the better course of action here, especially since the hearing date on this motion is only two days away from the December 20^th date Plaintiff offered. (Lewis Decl., Ex. H; see also Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1122-1123 [sanctions upheld against counsel for failing to comply with obligation to informally resolve discovery issues involving depositions before bringing motions to compel where opposing counsel advised that she and deponents would not be available for scheduled depositions but offered to reschedule].)

Third, even assuming for the sake of argument that the parties had properly met and conferred, Plaintiff’s actions do not warrant an order compelling Plaintiff’s deposition. While the Court can certainly appreciate the frustration Plaintiff’s actions caused here, those actions do not necessarily give Vons grounds for an order compelling Plaintiff’s attendance at a deposition. Plaintiff objected to two of the underlying depositions, and Vons did not argue or present evidence showing that those objections were invalid. (See Code Civ. Proc., § 2025.450, subd. (a)(1).) Plaintiff did not directly object to the third deposition notice,[1] but Vons did not argue that it was an invalid objection either. Vons simply contends that Plaintiff refuses to submit to a deposition. However, Vons admits in its moving papers that Plaintiff offered a date in December and 2 dates in January for her deposition before Vons filed this motion to compel. (Lewis Decl., ¶ 12, Ex. H.)

Based on the foregoing, the Court DENIES Vons’ motion to compel the deposition of Plaintiff. The Court also DENIES Vons’ request for monetary sanctions since Vons did not prevail on its motion to compel. However, the Court does note that the Plaintiff does have an obligation to appear for her deposition and to cooperate with Defendants in scheduling that deposition. The Court expects the parties to cooperate in future scheduling whether or not other defendants have appeared and not have to seek Court assistance on what should be a routine matter.

The Court DENIES the motion to compel the deposition of Plaintiff and the corresponding request for monetary sanctions.

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

[1] It would also appear to have been untimely anyway since the communication was made on November 14, 2023, i.e., less than three days before the November 16, 2023 deposition. (Code Civ. Proc., § 2025.410, subd. (a).)