Judge: Melvin D. Sandvig, Case: 21CHCV00660, Date: 2022-09-26 Tentative Ruling

Case Number: 21CHCV00660    Hearing Date: September 26, 2022    Dept: F47

Dept. F47

Date: 9/26/22

Case #21CHCV00660

MOTION TO COMPEL DEPOSITION

Motion filed on 8/3/22.

MOVING PARTY: Defendant Shellpoint Mortgage Servicing

RESPONDING PARTY: Plaintiff Anibal Armando Prada

NOTICE: ok

RELIEF REQUESTED: An order compelling the deposition of Plaintiff Anibal Armando Prada on a date certain and for sanctions against Plaintiff or Plaintiff’s counsel in the amount of $578.75.

RULING: The motion is denied without prejudice.

This action arises out of foreclosure proceedings against Plaintiffs Anibal Armando Parada and Ramona Lazarit’s (Plaintiffs) home.  The loan for the property is currently being serviced by Defendant Shellpoint Mortgage Servicing (Defendant).  The operative First Amended Complaint contains causes of action for: (1) Violation of Homeowner Bill of Rights and (2) Unfair Business Practices – Business & Professions Code 17200.

In May of 2022, counsel for Defendant attempted to meet and confer with counsel for Plaintiffs to schedule the deposition of Plaintiff Anibal Armando Prada (Prada).  (Scott Decl. ¶5.Ex.).  Upon receiving no response, Defendant noticed the deposition for 7/15/22.  (Id. at ¶¶5-6, Ex.2).  Prada did not respond or object to the notice.  (Scott Decl. ¶6).  Plaintiff failed to appear for the noticed deposition.  (Id. at ¶7, Ex.3).  Therefore, on 8/3/22, Defendant filed and served the instant motion seeking an order compelling the deposition of Plaintiff Anibal Armando Prada on a date certain and for sanctions against Plaintiff or Plaintiff’s counsel in the amount of $578.75.

CCP 2025.450 provides in relevant part:

(a) 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.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall 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.

(2) The motion 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.

(emphasis added)

Rather, than indicating that Defendant has contacted Prada to inquire about the nonappearance, the motion states that “Plaintiff has not provided any communication to explain the failure to appear for his properly noticed deposition.”  (See Motion, p.2:6-7).  The declaration filed in support of the motion does not state that Defendant’s counsel contacted Plaintiffs’ counsel to inquire about the nonappearance.  (See Scott Decl.).  Based on the foregoing, Defendant has failed to show that it complied with the statutory requirement to contact the deponent to inquire about the nonappearance.  CCP 2025.450(b)(2).  Therefore, the motion is denied without prejudice