Judge: Randy Rhodes, Case: 20CHCV00307, Date: 2022-10-21 Tentative Ruling

Case Number: 20CHCV00307    Hearing Date: October 21, 2022    Dept: F51

Dept. F-51

Date: 10-21-22                                                                                Trial Date: 12-12-22

Case #  20CHCV00307

MOTION TO COMPEL THE DEPOSITIONS OF DEFENDANT O’NEIL McINNIS

Motion filed on 9-29-22.

MOVING PARTY: Plaintiff Walter Martin, Trustee for the Genser L. Martin Living Trust

RESPONDING PARTY: None.

NOTICE: Ok.

RELIEF REQUESTED: Plaintiff Walter Martin, Trustee for the Genser L. Martin Living Trust (“Plaintiff”) moves for a Court Order compelling the deposition of Defendant O’Neil McInnis (“Defendant”) on October 31, 2022, or any time prior to November 8, 2022, and ordering Defendant’s payment of monetary sanctions equal to approximately $6,516.25.  In the event Plaintiff’s present Motion is granted, and Defendant nonetheless declines to sit for deposition in compliance with the Court’s Order, Plaintiff additionally requests a Court Order issuing evidentiary sanctions against Defendant, by way of prohibiting Defendant’s introduction of documents responsive to Plaintiff’s Deposition Notice.

RULING: Plaintiff’s Motion to Compel the Deposition of Defendant O’Neil McInnis is CONTINUED TO __________________.  Plaintiff is ordered to file a supplemental declaration no later than Wednesday, October 26, 2022, discussing whether or not Defendant, in propria persona, has expressly consented to electronic service pursuant to Code of Civil Procedure section 1010.6, and if so, whether the email address served is the true and correct email address of Defendant.  The Court defers ruling upon Plaintiff’s Motion and request for sanctions until the continued hearing date.

Service of a proper deposition notice obligates a party or “party-affiliated” witness (officer, director, managing agent or employee of party) to attend and testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying.  (Code Civ. Proc., § 2025.280, subd. (a).)  If, after service of a deposition notice, a party deponent fails to appear, testify, or produce documents or tangible things for inspection without having served a valid objection under Code of Civil Procedure section 2025.410, the deposing party may move for an order compelling attendance, testimony, and production.  (Code Civ. Proc., § 2025.450, subd. (a).)  The motion must be accompanied by a meet and confer declaration, or, when a party deponent fails to attend the deposition, by a declaration stating that the moving party has contacted the party deponent to inquire about the nonappearance.  (Code Civ. Proc., § 2025.450, subd. (b)(2).)  If the deposition notice included a request for production of documents, the motion to compel attendance must also show good cause to justify the production.  (Code Civ. Proc., § 2025.450, subd. (b)(1).)

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)(1).)

Preliminarily, the Court recognizes that Plaintiff has purportedly attempted to complete Defendant’s deposition for nearly one (1) year, to no avail.  Plaintiff has served approximately four (4) Notices of Deposition and Requests for Production of Documents upon Defendant, respectively, on approximately June 30, 2021 (“First Deposition Notice”), November 10, 2021 (“Second Deposition Notice”), February 8, 2022 (“Third Deposition Notice”), and most recently, on May 13, 2022 (“Fourth Deposition Notice”). (Gaugh Decl., Ex. C, F, H, J.)  Plaintiff’s First, Second, Third, and Fourth Deposition Notices have been served upon Defendant by email only, by emailing each Deposition Notice to the following email address: oneilmcinnis@icloud.com.  (Ibid.)  However, the Court notes that pursuant to Code of Civil Procedure section 1010.6, subdivision (a)(1)(A)(ii), Plaintiff would only be permitted to serve Defendant electronically if Defendant “has expressly consented to receive electronic service in [this] specific action”.  (Code Civ. Proc., § 1010.6, subd. (a)(1)(A)(ii).)  Defendant may communicate his express consent to electronic service by “serving a notice on all the parties and filing a notice with the court, or . . . manifesting affirmative consent through electronic means with the court or the court’s electronic service provider . . . .”  (Ibid.)  The Court observes that no such notice or manifestation of consent has been filed or otherwise provided to this Court.  Accordingly, the Court is inclined to conclude that Defendant has not provided the requisite affirmative consent to electronic service and, therefore, Plaintiff has failed to adequately serve Defendant with any of the above-referenced Notices of Deposition.  In the event Defendant has not provided such affirmative consent, Plaintiff’s present Motion must be denied.

However, where Defendant has provided such affirmative consent, the Court observes Plaintiff’s Motion may be appropriately granted.  Plaintiff’s present Motion concerns Defendant’s failure to appear in response to the most recent Fourth Deposition Notice.  Plaintiff’s Fourth Deposition Notice was served upon Defendant by email on approximately May 13, 2022, and notified Defendant that his deposition would occur remotely on approximately June 29, 2022.  (Gaugh Decl., Ex. C at pp. 2, 14 [service on Defendant’s email, oneilmcinnis@icloud.com].)  Plaintiff demonstrates that Defendant failed to appear in response to the Fourth Deposition Notice.  Accordingly, in the event Defendant has expressly consented to electronic service, and Plaintiff’s service of the Fourth Deposition Notice was proper, the Court may appropriately compel Defendant’s deposition as Defendant “failed to appear” following service of a proper deposition notice. (Code Civ. Proc., § 2025.450, subd. (a) [If, after service of a deposition notice, a party deponent fails to appear, testify, or produce documents or tangible things for inspection without having served a valid objection under Code of Civil Procedure section 2025.410, the deposing party may move for an order compelling attendance, testimony, and production.].) 

Given the Court’s findings above, the Court chooses to give Plaintiff the opportunity to demonstrate, pursuant to the filing of a supplemental declaration, that the electronic service of the Fourth Deposition Notice was proper as a result of Defendant’s express consent to electronic service.  In the event Plaintiff is unable to confirm, under penalty of perjury, that Defendant has provided such affirmative consent, Plaintiff’s Motion must be denied.  The Court orders Plaintiff to submit the aforementioned supplemental declaration no later than Wednesday, October 26, 2022, discussing whether or not Defendant, in propria persona, has expressly consented to electronic service pursuant to Code of Civil Procedure section 1010.6, and if so, whether the email address served is the true and correct email address of Defendant.  The Court defers ruling upon Plaintiff’s Motion and request for sanctions until the continued hearing date.