Judge: Mark A. Young, Case: 21SMCV00858, Date: 2023-11-29 Tentative Ruling

Case Number: 21SMCV00858    Hearing Date: December 14, 2023    Dept: M

CASE NAME:           Nancy Bushnell, et al. v. Farmers Insurance Exchange, et al.

CASE NO.:                21SMCV00858

MOTIONS:               (1) Defendant Truck Insurance Exchange’s Motion to Compel Nancy Bushnell’s Subsequent Deposition

                                    (2) Defendant Truck Insurance Exchange’s Motion to Compel Nolan Bushnell’s Subsequent Deposition

HEARING DATE:   12/14/2023

 

Background

 

This action was commenced on May 7, 2021, when Nancy and Nolan Bushnell filed a Complaint against Farmers Insurance Exchange, Fire Insurance Exchange, and Mid-Century Insurance Company (collectively, the “Insurance Companies”). The case stems from an underlying disagreement on an insurance policy Plaintiffs owned. Plaintiffs’ filed the operative Third Amended Complaint (TAC) on May 5, 2023 detailing their causes of action and allegations.  Defendant Truck Insurance Exchange (“Truck”) filed two motions: (1) Defendant Truck Insurance Exchange’s Motion to Compel Nancy Bushnell’s Subsequent Deposition and (2) Defendant Truck Insurance Exchange’s Motion to Compel Nolan Bushnell’s Subsequent Deposition (the “Motions”). Each Motion requests monetary sanctions in the amount of $1,058.00.

             

Legal Standard

 

A motion lies to compel deposition attendance and document production, after service of a deposition notice, where a deponent fails to appear at, or proceed with, a deposition, without having served a valid objection. (CCP §2025.450(a).) Any party that appeared in the action after the initial deposition concluded may notice another deposition. (CCP 2025.290(b)(6).) No meet and confer is required to compel initial deposition attendance, but instead there must be a declaration showing that moving party inquired about the nonappearance. (CCP §2025.450(b)(2).)  

 

“Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124. See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).) 

 

Analysis

 

After Plaintiffs filed their initial Complaint on May 7, 2021, the Insurance Companies deposed Plaintiffs on October 13, 2021. However, Truck had not been served at that time and therefore, had not appeared in the matter. (Declaration of Brieanna Dolmage, ¶¶ 2-5.) On March 25, 2022, Plaintiffs served Truck with the FAC. (Id. at ¶ 5.) After receiving the SAC and TAC which both added a new fourth cause of action, Truck noticed Plaintiffs with a Notice of Deposition for a remote deposition to take place on November 8, 2023. Plaintiffs objected to the notice on October 31, 2023, arguing that a deposition had already been taken. After meet and confer efforts failed, Truck filed these Motions.

 

In their motion, Truck argues that although depositions had been taken, Truck was not party to the action at that time and that Code of Civil Procedure section 2025.290(b)(6) allows Truck a statutory discovery right to take up to seven hours of deposition of Plaintiffs.  Plaintiffs oppose the motions based upon untimeliness, and that Plaintiffs’ age and health concerns should limit the depositions to three-hour increments.

 

Although the Motions are untimely pursuant to section 1005, the Court will conduct the hearing as scheduled.  Plaintiffs filed oppositions and there would be no violation of due process in conducting the hearings on December 12, 2023.  (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697-698.)  Furthermore, the Court agrees that Truck has a statutory right to depose Plaintiffs as outlined in section 2025.290(b)(6). Plaintiffs are willing to appear for the depositions, the issue is whether Plaintiffs should be forced to sit for a seven-hour deposition. Plaintiffs’ counsel points out that Nolan Bushnell is 80 years-old and recovering from a bout with the flu, while Nancy Bushnell is in her 70’s. (See Opposition Papers, 3:11-13.) It appears from the filings on both sides that conducting the depositions in three-hour increments is agreeable for both parties.

 

Therefore, the Motions are granted. However, although monetary sanctions are permitted, the Court exercises its discretion and does not impose any sanctions. 

 

CONCLUSION

 

Accordingly, Defendant Truck’s Motion to Compel Nancy Bushnell’s Subsequent Deposition and Defendant Truck Insurance Exchange’s Motion to Compel Nolan Bushnell’s Subsequent Deposition are both GRANTED. The depositions will occur within 30 days at a mutually agreed upon date, time, and location.