Judge: Nathan Vu, Case: 2021-01218699, Date: 2022-11-14 Tentative Ruling

Please Note: The hearing on this matter is scheduled for 8:30 A.M.

Motion to Compel

Plaintiff Ben’s Asphalt, Inc.’s motion to compel the deposition of Defendant Lytx, Inc.’s Person(s) Most Knowledgeable is GRANTED.

Defendant Lytx, Inc.’s Person(s) Most Knowledgeable is or are ORDERED to appear for deposition on 11/29/2022 and 12/01/2022.

“Any party may obtain discovery . . by taking in California the oral deposition of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.)

“If, after service of a deposition notice, a party to the action, without having served a valid objection . . . fails to appear for examination 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).)

Plaintiff properly served on Defendant the April 6, 2022 Notice of Deposition of Person Most Knowledgeable at Lytx, Inc.; the April 21, 2022 Notice of Deposition Continuance; the May 17, 2022 Notice of Second Deposition Continuance; the June 30, 2022 Notice of Third Deposition Continuance; the August 1, 2022 Notice of Fourth Deposition Continuance; and the August 23, 2022 Fifth Deposition Continuance. (Watten Amended Decl., ¶¶ 3-5, 7, 9, 11, & 13.)

Defendant argues that the motion to compel is premature and unnecessary. However, at the time the motion to compel was filed, counsel for Plaintiff stated that the parties had been unable to agree on a date for the sixth setting of the deposition date.

Defendant also argues that Defendant has not failed to appear at a scheduled deposition and a certificate of non-appearance has not been issued in this case. However, Defendant points to law or case that requires a deposing party to go through the motions of holding a deposition when the deponent has already indicated that they will not be present.

In short, Defendant has not identified any persuasive reason its person most knowledgeable (PMK) should not be compelled to appear for deposition. Indeed, Defendant states in its opposition its PMK intends to appear for their deposition and the parties have confirmed deposition dates. (Spearman Decl., ¶ 11, Exh. 4.) Plaintiff’s motion to compel Defendant’s PMK to appear for deposition is therefore granted.

Plaintiff shall give notice of this ruling.