Judge: Michael P. Linfield, Case: 22STCV25393, Date: 2023-10-18 Tentative Ruling

Case Number: 22STCV25393    Hearing Date: October 18, 2023    Dept: 34

SUBJECT:        Motion to Compel Deposition of Plaintiff

Moving Party: Defendant Arcadia Unified School District

Resp. Party:    Plaintiff John Atherton

The Motion is DENIED. 

BACKGROUND:

On August 5, 2022, Plaintiff John Atherton filed his Complaint against Defendant Arcadia Unified School District on causes of action arising from Plaintiff’s employment with Defendant.

On November 21, 2022, Defendant filed its Answer to the Complaint.

On April 25, 2023, Plaintiff filed Notice of Death of Attorney.

On August 30, 2023, Defendant filed its Motion to Compel Deposition of Plaintiff. In support of its Motion, Defendant concurrently filed: (1) Declaration of Nancy Doumanian; and (2) Proposed Order.

On October 9, 2023, Plaintiff filed Judicial Council Form MC-050, Substitution of Attorney — Civil.

Also on October 9, 2023, Plaintiff filed his Opposition to the Motion. In support of his Opposition, Plaintiff concurrently filed: (1) Declaration of Nicole C. Burgos Romero; (2) Declaration of Trudi Atherton; and (3) Declaration of John Atherton.

No reply or other response was filed regarding the Motion.

ANALYSIS:

I.          Legal Standard

“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).)

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.” (Code Civ. Proc., § 2025.450, subd. (g).)

II.       Discussion

Defendant moves the Court to compel Plaintiff to appear for a deposition within five days of the issuance of this Order. (Motion, p. 5:19–21.) Defendant does not request monetary sanctions.

Defendant argues: (1) that Defendant noticed the deposition of Plaintiff for August 9, 2023, but no response came from the office of Plaintiff’s Counsel; (2) that Defendant re-noticed the deposition of Plaintiff for August 30, 2023, but Plaintiff did not appear for the deposition; and (3) that Defendant must be allowed to conduct and complete the deposition of Plaintiff. (Motion, pp. 4:23–28, 5:1–17.)

        Plaintiff opposes the Motion, arguing: (1) that Plaintiff did not have counsel from March 30, 2023 to October 6, 2023; (2) that Plaintiff now has counsel and is now participating fully in the discovery process; and (3) that Plaintiff did, in fact, appear at the deposition on August 30, 2023 but that Defendant did not let him into the deposition from the virtual waiting room. (Opposition, pp. 2:11–27, 3:4–8.) In support of this last point, Plaintiff attaches a screenshot of the virtual waiting room he was allegedly in on August 30, 2023. (Decl. Atherton, Exh. 1.) Plaintiff does not request monetary sanctions in his Opposition.

        Defendant has not submitted a reply or other response regarding the Motion.

        It appears that Plaintiff has been willing to participate in his deposition but has had trouble doing so; in part this may have been because he had been unrepresented after the death of his prior counsel, and in part because Defense Counsel had not adequately communicated with Plaintiff.

Plaintiff’s counsel agrees that defense counsel has the right to depose Plaintiff.  (Opposition, p. 2:21-23.)  The Court does not believe that an order compelling Plaintiff’s deposition is necessary.  Should there be any problem in arranging for Plaintiff’s deposition, the Court is always available for an Informal Discovery Conference.

III.     Conclusion

The Motion is DENIED.