Judge: Michael E. Whitaker, Case: 21STCV08319, Date: 2023-02-03 Tentative Ruling

Case Number: 21STCV08319    Hearing Date: February 3, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Plaintiff Bailey Moore (Plaintiff) moves the Court to compel the appearance of Defendant Sandi Korsen (Defendant) for deposition and produce documents requested in the deposition notice.  Plaintiff requests monetary sanctions in connection with the motion.  Defendant opposes the motion.  Plaintiff replies.

ANALYSIS

“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).)

Here, on June 10, 2022, Plaintiff served the subject deposition notice on Defendant.  Plaintiff noticed the deposition of Defendant for July 11, 2022. 

On July 5, 2022, Defendant served an objection to the subject deposition notice stating the following:

1. Plaintiff’s counsel agreed to produce plaintiff to complete his self-terminated deposition upon Defendant’s request the deposition be completed before Defendant’s deposition Plaintiff and/or his counsel have refused to provide a date to complete the deposition.

2. Defendant propounded supplemental discovery and said responses were due on or before July 1, 2022.  Plaintiff has requested an extension to respond until July 14, 2022, and that request has been granted with a request to complete plaintiff’s deposition shortly thereafter.

3. Counsel for Defendant has a Final Status Conference in Rosenthal v. Luna, 19STCV35361 on July 11, 2022, the same cold (sic) date set by plaintiff for Defendant’s Deposition.

(Declaration of Alexander J. Zeesman, Exhibit B.)  On July 11, 2022, Defendant did not appear for deposition and a certificate of nonappearance was taken.  (Declaration of Alexander J. Zeesman, Exhibit C.) 

In opposition, Defendant primarily reiterates arguments presented in the July 5, 2022 objection.  However, Defendant fails to advance any legal support for her argument that Plaintiff’s deposition must be completed before Defendant’s.  As such, the Court does not find this to be a valid objection to the subject deposition notice.  Further, an attorney’s notice of unavailability has no legal effect and does not entitle anyone to a continuance.  (See Carl v. Superior Court (2007) 157 Cal.App.4th 73, 75.) 

Plaintiff seeks monetary sanctions in connection with the motion.  In opposition, Defendant argues sanctions are wholly inappropriate based on Plaintiff Counsel’s lack of civility and failure to honor the alleged promise that Plaintiff’s deposition be completed before Defendant’s deposition.  The Court agrees with Defendant and finds that the imposition of monetary sanctions would be unjust under the circumstances. [1]  (See Code Civ. Proc., § 2025.450, subd. (g)(1).) 

CONCLUSION AND ORDER

Therefore, the Court grants, in part, Plaintiff’s motion to compel Defendant to appear for deposition per Code of Civil Procedure section 2025.450, and orders Defendant to appear for deposition within 30 days of notice of the Court’s order, unless Plaintiff stipulates otherwise. 

Plaintiff shall provide notice of the Court’s orders and file a proof of service of such.