Judge: Michael C. Kelley, Case: 21AVCV00592, Date: 2022-08-18 Tentative Ruling

Case Number: 21AVCV00592    Hearing Date: August 18, 2022    Dept: A15

Background

This premises liability case arises from an alleged slip-and-fall that occurred on August 5, 2019, at the Walmart located at 1731 East Avenue J, in the city of Lancaster. (Compl. ¶ GN-1; Defs.’ Mot. Compel Attendance at 3.) Plaintiff Loretta A. Malveaux alleges she was at that Walmart when she slipped and fell on a wet floor. (Compl. ¶ GN-1.)

Plaintiff therefore filed the operative Complaint on July 29, 2021, alleging two causes of action for (1) negligence and (2) premises liability against Defendants Walmart Inc. and its store manager, Dawn Turner. Defendants filed an answer on November 16, 2021.

On March 29, 2022, Plaintiff’s attorney filed a Motion to Be Relieved as Counsel, citing a “breakdown in communication” between attorney and client. (Mot. Relieved Counsel at Decl. ¶ 2.) The Court granted the motion on April 26, 2022. As no notice of substitution of attorney has been filed, the Court presumes Plaintiff is currently proceeding without representation.

On June 15, 2022, Defendants filed and timely served the instant Motion to Compel Plaintiff’s Attendance at Deposition. The Motion requests an order compelling Plaintiff to attend a virtual deposition on either August 25, 2022, or another mutually convenient date and time; and a total of $927.20 in monetary sanctions.

Analysis

Motion to Compel Deposition—Code of Civil Procedure section 2025.450 provides the authority for moving to compel the deposition of a party-deponent: “If, 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 . . . the party giving the notice may move for an order compelling the deponent's attendance and testimony[.]” (Code Civ. Proc., § 2025.450, subd. (a).) 

A motion seeking to compel a deposition must also contain either a meet and confer declaration, or a declaration “stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b).)

Here, Defendants move to compel Plaintiff’s deposition. Defendant Walmart served a deposition notice, by mail, to Plaintiff on April 26, 2022. (Defs.’ Mot. Compel Attendance at Ex. B.) Because Plaintiff is self-represented, Walmart mailed the deposition notice to Plaintiff’s personal address. (Ibid.)

Defendants attest Plaintiff did not appear at the May 23, 2022 deposition. (Defs.’ Mot. Compel Attendance at Decl. Larson ¶ 5.) There is no indication that Plaintiff ever objected to the deposition notice.

However, Defendants have not included a meet and confer declaration with their motion, nor in any way indicated that they have contacted Plaintiff to inquire about her nonappearance. None of their exhibits reference such an inquiry, either.

Defendants are entitled to eventually depose Plaintiff. But, as Code of Civil Procedure section 2025.450 clearly requires Defendants to attempt an informal resolution before filing a motion, Defendants’ motion is defective.

Conclusion