Judge: Mel Red Recana, Case: 20STC02253, Date: 2024-06-26 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 20STC02253    Hearing Date: June 26, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing Date:             June 26, 2024

Motion to Compel Deposition:

Moving Parties:           Defendant California Automobile Insurance Co.

Responding Party:       Plaintiff Stephen Brown

The court considered the moving, and opposition papers. No reply has been filed.

The court GRANTS Defendant’s motion to compel Plaintiff’s deposition. Plaintiff is ordered to appear for his deposition within 20 days of this order.

The court DENIES Defendant’s request for sanctions.

Background

Plaintiff Stephen Brown (“Plaintiff”) filed this action on January 19, 2022, against defendants Mercury Insurance, and California Automobile Insurance, Co., alleging causes of action for (1) Breach of Contract; (2) Breach of Implied Covenant of Good Faith and Fair Dealing.

The Complaint alleges that on June 6, 2020, Plaintiff’s home suffered a flood, rendering it uninhabitable. Plaintiff alleges he and his family were forced to move out and into replacement housing commencing on June 14, 2020, and that Plaintiff notified Defendants that he and his family had moved because the flood had rendered the home uninhabitable.

Plaintiff alleges that Defendants delayed, obstructed, and effectively denied the claim for repairs to his home through their lack of diligence, and Plaintiff had to conduct the repairs himself. Plaintiff also alleges Defendants improperly denied reimbursement for temporary housing.

On December 7, 2023, Defendant California Automobile Insurance Co. (“Defendant”) filed this motion to compel Plaintiff’s deposition. On June 12, 2024, Plaintiff filed an opposition. No reply has been filed.

Legal Standard

Code of Civil Procedure, section 2025.450 provides that “[i]f, after service of a deposition notice, a party to the action . . . without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it . . . the party giving the notice may move for an order compelling the deponent's attendance and testimony . . . .” (Code Civ. Proc., § 2025.450(a).) “Any party served with a deposition notice . . . 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, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.” (C.C.P. § 2025.410.)

CCP section¿2025.450(b) provides:¿“A motion under subdivision (a)… shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿ (Id., § 2025.450(b).)  

If a motion under CCP section¿2025.450(a) is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Id., § 450(g)(1).)

Discussion

On March 31, 2023, Defendant served Plaintiff with a notice of taking his deposition, which was scheduled for May 16, 2023. (Castronovo Decl., ¶ 4; Exh. A.) The deposition did not proceed due to the unavailability of either Plaintiff or his counsel. (Id., ¶ 4.) On May 12, 2023, Plaintiff served an objection on the grounds that the deposition was unilaterally noticed. (Id., ¶ 5; Exh. B.) After numerous meet and confer efforts, Plaintiff’s deposition was set for August 2, 2023. (Id., ¶¶ 6-9; Exh. E.) On July 17, 2023, Plaintiff’s deposition was once again continued to August 21, 2023. (Id., ¶ 10; Exh. F.) On August 17, 2023, defense counsel agreed to continue Plaintiff’s deposition due to the fact that his counsel was engaged in trial, and the deposition was continued to November 20, 2023. (Id., ¶ 11; Exh. G.) On November 16, 2023, Plaintiff’s counsel advised that the deposition could not proceed as scheduled. (Id., ¶ 12.) Defense counsel once again asked for deposition dates, but an agreeable date was not provided. (Id., ¶ 14.)

In opposition, Plaintiff argues that sanctions should not be imposed because there is substantial justification for Plaintiff’s deposition not being able to proceed. Plaintiff’s counsel states that over the last six months, his calendar has been impacted by a total of four trials all in cases filed before this action. As a result, he states it has been impossible to schedule a deposition. (Murphy Decl., ¶ 7.)

As Plaintiff was properly served with multiple notices of deposition, did not object under Section 2025.410 to the majority of the notices, and failed to proceed with his deposition, the motion to compel Plaintiff to appear for deposition is granted.  Plaintiff is ordered to appear for deposition within 20 days of this order.

            The court finds that Plaintiff’s counsel provided substantial justification for the failure to proceed with deposition, but will note that any further delays in proceeding with the deposition may result in sanctions.

            It is so ordered.

Dated: June 26, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court