Judge: Mark A. Young, Case: 23SMCV02236, Date: 2024-05-21 Tentative Ruling

Case Number: 23SMCV02236    Hearing Date: May 21, 2024    Dept: M

CASE NAME:           Kinder v. Albertsons Co. Inc.

CASE NO.:                23SMCV02236

MOTION:                  Motion to Compel Second Deposition

HEARING DATE:   5/21/2024

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).) If the deposition notice included a request for production of documents, the motion to compel attendance must also show good cause to justify the production. (CCP § 2025.450(b)(1).)  As such, the moving party must provide declarations containing 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. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192.)

Analysis

Defendant the Vons Companies Inc. move for an order compelling the second session of the deposition of plaintiff Catherine Kinder.  Defendant explains that plaintiff agreed to appear for deposition on December 28, 2023, and her deposition was commenced on that date. (Lewis Decl., Ex. A.) After approximately 2 hours of testimony, plaintiff stated that she could not continue, the deposition was discontinued, and plaintiff was requested to provide a date for the continued deposition. (Id.) Following meet and confer efforts as well as several notices of deposition (Lewis Decl., Exs. B-F), on March 26, 2024, Vons served a Notice of Taking Second Session of Plaintiff's Deposition for April 17, 2024. (Lewis Decl., Ex. G.) Plaintiff failed to object or appear for the timely and properly noticed deposition on April 17, 2024, and counsel took a certificate of non-appearance. (Lewis Decl., Ex. H.) With this record, Defendant demonstrates the service of a proper deposition notice for the continued session of plaintiff’s deposition. Plaintiff was therefore obligated to appear at the April 17, 2024, deposition.

Plaintiff filed an untimely opposition to this motion. Plaintiff does not give any persuasive reason as to why she failed to appear at her noticed deposition. Plaintiff merely states that she initially believed that she might be able to appear, but then realized on April 15, 2024, that she could not and advised defense counsel of such. This does not justify plaintiff’s failure to appear.

Accordingly, the motion is GRANTED. Plaintiff is ordered to attend her deposition at 21052 Oxnard Street, Woodland Hills, California 91367 at a mutually agreeable time and date, within 14 days. Sanctions are imposed against Plaintiff in the amount of $1,700.00, inclusive of costs. Sanctions are to be paid to Defendant’s counsel within 30 days.