Judge: Lynne M. Hobbs, Case: 22STCV11750, Date: 2023-08-03 Tentative Ruling

Case Number: 22STCV11750    Hearing Date: January 11, 2024    Dept: 30

22STCV11750 YERITSYAN VS. GUMURYAN

TENTATIVE

Defendant’s motion to compel the deposition of Plaintiff Sarkis Garabet is GRANTED. Plaintiff Sarkis Garabet is ordered to appear for deposition within 20 days of this order. Defendant’s request for sanctions is DENIED.

Background 

On April 6, 2022, Plaintiffs Sargis Yeritsyan and Sarkis Garabet filed a complaint against Defendant Andranik Gumuryan alleging causes of action for general negligence, arising out of a vehicle collision that occurred on January 23, 2021.

On June 7, 2023, Defendant filed a motion to compel Plaintiff Sarkis Garabet’s attendance at a deposition.

Legal Standard

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

CCP section¿2025.450(a) provides:¿“If, after service of a deposition notice, a party to the action . . . , 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 . . . 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 . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450(a).) 

CCP section¿2025.450(b) provides:¿“A motion under subdivision (a)… 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.”¿ (Id., § 2025.450(b).) 

Discussion 

On June 2, 2022, Defendant noticed the deposition of Plaintiff Yeritsyan. The deposition was scheduled to take place on September 15, 2022. (Brunello Decl., Exh. A.) Plaintiffs’ counsel indicated that the depositions needed to be rescheduled. (Id., Exh. B.)

On September 30, 2022, Plaintiff’s deposition was re-set, per the request of counsel, for December 19, 2022. (Id., Exh. C.) The depositions never went forward, per the mutual agreement of the parties.

On December 19, 2022, defense counsel sent plaintiffs’ counsel an e-mail with proposed deposition dates. (Id., Exh. D.) Counsel never responded to this e-mail. Therefore, on January 13, 2023, the deposition of Plaintiff was re-set for February 15, 2023. (Id., Exh. E.) Plaintiffs’ counsel sent an e-mail to defense counsel that the deposition date of February 15, 2023 “will not work” and requested to re-schedule for mid-May. (Id., Exh. F.)

On March 25, 2023, defendant re-set the deposition for May 2, 2023. (Id., Exh. G.) On March 27, 2023, plaintiffs’ counsel emailed defense counsel and requested that the deposition be moved to late May, when his client was back in the country. (Id., Exh. H.)

Defense counsel agreed to move the depositions one last time. The depositions were again re-set for May 22, 2023. (Id., Exh. I.) On May 18, 2023, plaintiffs’ counsel e-mailed defense counsel and indicated that Plaintiff Yeritsyan was out of the country until the end of July (although, they said end of May earlier), and Plaintiff Garabet needed to move his deposition. Counsel indicated that they would provide dates no later than close of business the next day. Dates were never provided. (Id., Exh. J.)

Plaintiffs failed to appear for deposition on May 22, 2023. Defense counsel was forced to take a Certificate of Non-Appearance. (Id., Exh. K.)

As Plaintiff was properly served with the notice of deposition, did not object under CCP section 2025.410, and failed to appear, the motion to compel Plaintiff to appear for deposition is GRANTED.  Plaintiff Sarkis Garabet is ordered to appear for deposition within 20 days of this order.

Defendant’s request for sanctions is denied for improper notice. CCP § 2023.040 provides that: “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” The notice of motion does not identify who Defendant seeks sanctions against. Thus, the Court cannot grant the request for sanctions without proper notice. 

Conclusion 

Based on the foregoing, Defendant’s motion to compel the deposition of Plaintiff Sarkis Garabet is GRANTED. Plaintiff Sarkis Garabet is ordered to appear for deposition within 20 days of this order. Defendant’s request for sanctions is DENIED. 

Moving party is ordered to give notice.