Judge: Michael E. Whitaker, Case: 21STCV27197, Date: 2023-05-10 Tentative Ruling

Case Number: 21STCV27197    Hearing Date: May 10, 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

MOTIONS

            Defendant Costco Wholesale Corporation moves the Court to compel the appearance of Plaintiffs Oliver Betancourt and Sandra Betancourt (collectively, Plaintiffs) for depositions.  Defendant requests monetary sanctions in connection with the motions.  Plaintiffs oppose the motions.  Defendant 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 February 9, 2023, Defendant served the sixth amended deposition notices on Plaintiffs.  Defendant noticed the depositions of Plaintiffs for March 17, 2023.  Counsel for Plaintiffs canceled the depositions and rescheduled the depositions for April 12, 2023. 

On April 10, 2023, Defendant served the seventh amended deposition notices on Plaintiffs.  Defendant noticed the depositions of Plaintiffs for April 12, 2023.  On the evening of April 10, 2023, Plaintiffs’ Counsel cancelled Plaintiffs’ depositions, based on a trial in a different case going forward unexpectedly.   (Declaration of Julian Smith, ¶ 24, Exhibit T.)  As of the date of filing of these motions, Plaintiffs have not appeared for depositions. 

In opposition, Plaintiffs advance Plaintiff Oliver Betancourt’s declaration in which he states Plaintiffs’ previous counsel either did not give him, and Plaintiff Sandra Betancourt, any notice, or extremely late notice, of their first through fifth scheduled depositions.  (Declaration of Oliver Betancourt, ¶¶ 4-5.) 

Plaintiffs additionally advance the declaration of their current counsel, Hyka H. Karapetian (Karapetian), who avers that though the parties had initially agreed upon the March 17, 2023 date, when Defendant ultimately noticed the depositions, that date was no longer available for Plaintiffs and/or Karapetian.  Further, Karapetian explains when the most recent deposition date, April 12, 2023, was first agreed to between the parties, a trial for a different case which was set for that time period was anticipated to settle.  (Declaration of Hyka H. Karapetian, ¶¶ 8-9.)  However, there was a subsequent breakdown in settlement negotiations in that case which required Karapetian to prepare to go forward with said trial, and necessitated the canceling of the April 12, 2023 deposition date for Plaintiffs.  (Declaration of Hyka H. Karapetian, ¶¶ 8-9.)  The Court however notes 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.)  Karapetian further explains that when she canceled the April 12, 2023 depositions she provided alternate dates to reschedule in good-faith.  (Declaration of Hyka H. Karapetian, ¶ 10.) 

In reply, Defendant states that new deposition dates have been noticed for Plaintiffs on June 1, 2023.  Defendant requests the Court order Plaintiffs to appear for their June 1, 2023, depositions. 

The Court finds that the most recent deposition notices served on Plaintiffs, setting Plaintiffs’ depositions for June 1, 2023, are controlling here.  Because the instant hearing date is before the set deposition dates, the Court cannot determine whether or not Plaintiffs will appear for their depositions and thus cannot determine whether motions to compel are appropriate.  Accordingly, the Court denies Defendant’s motions to compel Plaintiffs’ depositions as premature. 

Based on the prematurity of Defendants’ motions to compel Plaintiffs’ depositions, the Court further denies Defendants’ requests for monetary sanctions pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1). 

CONCLUSION AND ORDER

Therefore, the Court denies Defendant’s motions to compel Plaintiffs to appear for deposition.  Defendant shall provide notice of the Court’s orders and file a proof of service of such.