Judge: Mark A. Young, Case: 21SMCV01104, Date: 2023-03-22 Tentative Ruling

Case Number: 21SMCV01104    Hearing Date: March 22, 2023    Dept: M

CASE NAME:           Amherst Villas Condominium Association, Inc., v. Belcrest Siding Specialist Corporation

CASE NO.:                21SMCV01104

MOTION:                  Motion to Compel the Deposition of Defendant’s Agent

HEARING DATE:   3/22/2023

Legal Standard

Service of a proper deposition notice obligates a party or “party-affiliated” witness (officer, director, managing agent or employee of party) to attend and testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying. (CCP § 2025.280(a).) If, after service of a deposition notice, a party deponent fails to appear, testify, or produce documents or tangible things for inspection without having served a valid objection under CCP § 2025.410, the deposing party may move for an order compelling attendance, testimony, and production. (CCP § 2025.450(a).) The motion must be accompanied by a meet and confer declaration, or, when a party deponent fails to attend the deposition, the motion must also be accompanied by a declaration stating that the moving party has contacted the party deponent to inquire about the nonappearance. (CCP § 2025.450(b)(2).)

A motion to compel production of documents described in a deposition notice must be accompanied by a showing of good cause. (CCP § 2025.450(b)(1).) In other words, the moving party must provide evidence (generally in the form of declarations) showing specific facts justifying inspection of the documents described in the notice. Courts liberally construe good cause in favor of discovery where facts show the documents are necessary for trial preparation.

The motion to compel must be “made no later than 60 days after the completion of the record of the deposition.” (CCP § 2025.480(b).) This time limit also applies to motions based on a deposition subpoena for production of documents or a business records subpoena. The 60-day time limit runs from the date objections are served because the deposition record is then complete.

Analysis

Plaintiff moves for an order compelling Defendants to produce its employee, Alberto Perez, to appear and produce documents and things specified in the deposition notice. (Ruiz Decl., Ex. A.)  Perez was the foreman of the subject remodeling project. Plaintiff provides good cause for the attendant production of documents, which generally regards the work and services Perez performed at the subject Property, among other relevant categories. (Ruiz Decl., ¶ 17.)

Defendant does not contest that the deposition was properly noticed. (Melkonian Decl., ¶ 3.) Instead, Defendant contends that Perez was unavailable because he had traveled to Mexico to “visit his brother who had been in automobile accident” following the deposition notice. (Id., ¶ 4, Ex. 1.) While Defendant immediately conveyed that fact to Plaintiff on February 1 (¶ 5), and Defendant has offered to make Perez available in Mexico or upon his return to the United States (¶ 9), Defendant does not explain why this would excuse Perez from his duly noticed deposition. Counsel only provides a conclusory declaration that Perez is still in Mexico, without a declaration from Perez himself. The Court is not inclined to trust counsel’s hearsay explanations.

Given that it is undisputed that Perez was required to attend his deposition, and did not, the motion is GRANTED. Perez’s deposition will take place at a mutually agreeable time and location, within 10 days. If Perez truly is physically unavailable for whatever reason, then the Court would require the deposition to be taken remotely.

Plaintiff requests sanctions in the amount of $4,651.65 against Defendant and Perez. Counsel provides that this is for: a) non-refundable cancellation fees for the interpreter ($505); b) Meet and confer efforts to compel attendance ($260); c) obtaining certificate of non-appearance ($487.50); d) costs associated with the CNA ($575); e) confer efforts to obtain new deposition date ($162.50); f) preparing the motion to compel ($815.50); g) review opposition and prepare a reply ($487.50); h) appearance for motion ($1,300); and i) costs ($61.65). On this record, the Court finds that a reasonable amount of sanctions would be $3,026.65. Accordingly, the request for sanctions is GRANTED in the reduced total amount of $3,026.65 against Defendant only. The Court declines to issue sanctions against Perez individually, unless there is substantial evidence that he personally refused to appear. The Court cannot sanction counsel, as no sanctions were noticed against counsel.