Judge: Mark E. Windham, Case: 23STLC07714, Date: 2024-11-04 Tentative Ruling

Case Number: 23STLC07714    Hearing Date: November 4, 2024    Dept: 26

Hernandez v. Dudenko, et al.

MOTION TO COMPEL DEPOSITION AND REQUEST FOR SANCTIONS

(CCP §§ 2025.450)

TENTATIVE RULING:  

Plaintiff Dominique Hernandez’s Motion to Compel Plaintiff’s Attendance at Deposition and Request for Monetary Sanctions is DENIED. PLAINTIFF DOMINQUE HERNANDEZ AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $500.00 TO DEFENSE COUNSEL WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff Dominque Hernandez (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants Yuliya Dudenko (“Defendant Dudenko”) and Bryan Altman on December 4, 2023. Defendants answered on February 8, 2024, and on September 18, 2024 filed a Notice of Change of Handling Attorney.

On October 2, 2024, Plaintiff filed the instant Motion to Compel Plaintiff’s Attendance at Deposition and Request for Monetary Sanctions. Defendant Dudenko filed an opposition on October 22, 2024.

Discussion

Code of Civil Procedure section 2025.450, section (a) states in relevant part:

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.

(Code Civ. Proc., § 2025.450, subd. (a).) The motion must also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450, subds. (b)(1), (2).)

The Motion is supported by a declaration setting forth the following facts. In April 2024, the parties’ attorneys communicated regarding a deposition date for Defendant Dudenko and agreed to July 19, 2024. (Motion, Shah Decl., ¶3.) On May 7, 2024, Plaintiff’s counsel served the Notice of Deposition and Request for Production of Documents. (Id. at Exh. 1.) A few days before the deposition date, defense counsel’s office called to inform Plaintiff’s counsel that the handling attorney had left the firm and a new attorney would reach out. (Id. at ¶4 and Exh. 2.) A new defense attorney never reached out to reschedule the deposition or otherwise communicate with Plaintiff’s counsel. (Ibid.) Plaintiff’s attorney reached out several times over the next couple of months, and finally, after requesting a new deposition date on September 27, 2024, heard back from defense counsel’s office. (Id. at ¶¶5-6.) The communication from defense counsel’s office was that the attorney assigned to the case had also left but did not indicate when another attorney would be assigned. (Id. at ¶6.)

The Motion does not point out that on September 19, 2024, Defendants filed and served a Notice of Change of Handling Attorney indicating that the new attorney assigned to represent them was Scott C. Stratham. (Notice, filed 09/18/24.) Also, on September 30, 2024, following Plaintiff’s counsel’s inquiry about the new attorney, defense counsel’s office responded that Attorney Stratham was assigned to the case. (Opp., Stratham Decl., ¶¶5-6 and Exh. A.) Therefore, the Court finds that the meet and confer requirement is not satisfied. Plaintiff’s counsel was provided a Notice of Change of Handling Attorney on September 19, 2024 by electronic service. Plaintiff’s counsel was also contacted on September 30, 2024 by defense counsel’s office with the name of the handling attorney following their inquiry one business day earlier on September 27, 2024. Yet Plaintiff filed the instant Motion on October 2, 2024. The Court also agrees with the opposition that there has been no failure to appear at deposition, as required by Code of Civil Procedure section 2024.250. The deposition notice with respect to the July 19, 2024 date appears to have been withdrawn by Plaintiff following mutual agreement with defense counsel’s office. No new deposition notice was served. Therefore, the request to compel Defendant Dudenko’s appearance at deposition is denied.

Defendant Dudenko also requests sanctions pursuant to Code of Civil Procedure section 2023.020, for failing to meet and confer in good faith. Sanctions are awarded to Defendant Dudenko in the amount of $500.00. (Opp., Stratham Decl., ¶8.)

Conclusion

Plaintiff Dominique Hernandez’s Motion to Compel Plaintiff’s Attendance at Deposition and Request for Monetary Sanctions is DENIED. PLAINTIFF DOMINQUE HERNANDEZ AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $500.00 TO DEFENSE COUNSEL WITHIN 20 DAYS OF THIS ORDER.

Moving party to give notice.