Judge Mark A. Young, Case Number: 23SMCV04191, Date: 2024-07-16 Tentative Ruling

Judge: Mark A. Young, Case: 23SMCV04191, Date: 2024-07-16 Tentative Ruling

Case Number: 23SMCV04191 Hearing Date: July 16, 2024 Dept: M

CASE NO.: 23SMCV04191

MOTION: Motion to Compel Plaintiff’s Deposition

HEARING DATE: 7/16/2024

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).)

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 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 Shoghig Dikijian moves to compel Plaintiff Mina Brugger to appear for her deposition. Defendant also requests monetary sanctions against Plaintiff and her counsel of record, Sanaz Imani and the Mesriani Law Group, jointly and severally, in the amount of $2,486.80.

Defendant demonstrates that Plaintiff failed to appear at her properly noticed deposition. It is undisputed that Defendant served Plaintiff with a Notice of Taking Deposition and Request for Production of Documents with a deposition date of May 10, 2024. (Bakshandeh Decl., ¶ 2, Ex. A.) Plaintiff failed to appear for her deposition and never served a timely written objection. (Id., ¶¶3-4.)

Plaintiff explains that her counsel emailed defense counsel on May 3, 2024, that due to a medical appointment which could not be rescheduled, counsel was unavailable on that date. (Imani Decl., ¶5.) Additionally, counsel needed to reschedule the deposition to July or August 2024 due to maternity leave beginning at the end of May 2024, and because counsel could not secure another attorney to take her place. (Id., Ex. D.)

Plaintiff did not timely serve any objection to the noticed deposition until May 7, 2024, rendering such objection untimely. (Imani Decl. ¶6, Ex. E.) Code of Civil Procedure section 2025.410(b) requires personal service pursuant to section 1011 within three days of the deposition. If service was made electronically, section 1010.6(a)(3)(B) would extend the notice period by two court days. The objections were served less than five days before the scheduled deposition. Thus, the objections are untimely.

Furthermore, the objections are without merit. “Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled . . ..” (CCP §2025.410 (a).) The objections do not claim non-compliance with Article 2, relating to the contents of the notice, location of the notice, date of the deposition, time limits, etc. Instead, Plaintiff objected to the deposition only “on the grounds there exists an unavoidable conflict.” (Imani Decl., Ex. E.) The Court does not recognize such an objection as grounds to prevent the deposition from going forward on the noticed date. Therefore, Plaintiff’s objection did not excuse her absence.

Monetary sanctions are mandatory, unless the person subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. In light of the discussion above, the Court finds no such circumstances. Accordingly, the motion is GRANTED. Sanctions are imposed in the noticed amount of $2,486.80, inclusive of costs, against Plaintiff and her counsel of record, jointly and severally.