Judge: Margaret L. Oldendorf, Case: 22AHCV00035, Date: 2023-01-09 Tentative Ruling

Case Number: 22AHCV00035    Hearing Date: January 9, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

            I.         INTRODUCTION

            This is an Unruh action by a visually impaired person who requires screen-reading software in order to access the internet. Plaintiff Perla Mageno alleges that Defendant Pixi, Inc. offers its products on a publicly available website that is not fully accessible to legally blind persons such as herself.

            Before the Court is Mageno’s motion to compel the deposition of Pixi’s person most knowledgeable; and Pixi’s head of E Commerce, Vasilika Poniros. As explained below, the motion is denied because the procedural requirements of the applicable discovery statute have not been satisfied.

II.        LEGAL STANDARD

            Code Civ. Proc. §2025.450 provides relief where a party fails to appear for deposition without having served a valid objection. It provides as follows:

(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) [omitted]

(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. §2025.480 provides relief when a deponent has appeared for the deposition, but has refused to answer questions. It provides:

(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

III.      ANALYSIS

            A. Summary of Evidence

            The evidence concerning the sequence of events leading up to this motion is provided in the Declaration of Plaintiff’s counsel, Tristan Jankowski (and the exhibits attached thereto).

            On October 17, 2022, Jankowski requested in an email that Pixi’s counsel provide several dates in late November for the deposition of Pixi’s person most knowledgeable. Declaration at ¶2 and Exhibit A. Based on written discovery responses, Pixi identified that person as Vasilika Poniros; who is also Pixi’s head of E Commerce. Declaration at ¶7. Jankowski did not receive a response to the email.  On November 8, 2022, Mageno served  notices of deposition setting November 30, 2022 as the date for Poniros’s deposition, and December 1, 2022 as the date for the PMK deposition. Declaration at ¶3 and Exhibit B. On November 23, 2022, Pixi responded by serving objections to both notices. Declaration at ¶4 and Exhibit C.  The objections included, inter alia, that the depositions were scheduled unilaterally, and the deponent would not be produced for the date indicated.  The depositions did not go forward.

            On November 28, 2022, Jankowski sent defense counsel a second email, this time requesting that deposition dates be provided between December 12 and 23, 2022. Declaration at ¶ 5 and Exhibit D. On November 30, 2022, Jankowski sent a follow-up email. Declaration at ¶6 and Exhibit E.  Plaintiff did not serve any new deposition notices, however.

            Plaintiff filed this motion on December 7, 2022.

B. Discussion

            Plaintiff initially cites Code Civ. Proc. §2025.480 as the authority for her motion to compel.  (Notice of motion at 2:10-11.)  However, this provision applies to circumstances where a deponent has appeared for the deposition, but has failed to respond to certain questions or to provide specified documents. The facts in this case clearly do not support relief under this section.

            The body of Plaintiff’s motion does also cite to Section 2025.450.  (Memorandum of Points and Authorities at 4:24.)  The motion is denied under this provision as well.  In this case, Pixi’s PMK (and/or witness Poniros) did not fail to appear for a noticed deposition that they did not object to.  The fact that Defendant’s counsel failed to respond to Jankowski’s November 2022 emails -- while admittedly frustrating to counsel and certainly disappointing to this Court -- it is not enough to support a motion to compel under the statutory requirements of Section 2025.450.  Plaintiff needed to pursue further communication with opposing counsel, and re-notice the depositions for dates that were agreeable to both sides.

IV.      CONCLUSION AND ORDER

            Mageno’s motion to compel the deposition of Pixi’s person most knowledgeable and Vasilika Poniros is denied.  Mageno’s request for monetary sanctions in connection with the motion is also denied.

            Defendant Pixi, Inc. is ordered to give notice.

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT