Judge: Serena R. Murillo, Case: 19STCV38841, Date: 2022-10-24 Tentative Ruling

Case Number: 19STCV38841    Hearing Date: October 24, 2022    Dept: 29

Manushag Hovanesian v. Macy’s West Stores, Inc.

Motion to Compel Attendance at Deposition and Request for Sanctions filed by Defendant Macy’s West Stores LLC

TENTATIVE 

Defendant Macy’s West Stores LLC’s motion to compel the deposition of Plaintiff is DENIED as MOOT. The request for sanctions is DENIED.

    Legal Standard 

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

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

CCP section¿2025.450(a) provides:¿“If, after service of a deposition notice, a party to the action . . . , 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 . . . 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 . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450(a).) 

CCP section¿2025.450(b) provides:¿“A motion under subdivision (a)… shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿ (Id., § 2025.450(b).) 

Sanctions

If a motion under CCP section¿2025.450(a) is granted, the court shall impose a monetary sanction 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. (CCP section¿2025.450(g)(1).

Discussion 

On February 7, 2022, Defendant Macy's West Stores, LLC, served a notice of deposition of Plaintiff scheduled for March 3, 2022. (Lenkov Decl., Exh. A.) Plaintiff did not object to the notice, and her counsel never indicated to Defendant's counsel that she would not appear on March 3, 2022. Plaintiff did not appear for deposition on March 3, 2022. (Id., Exh. B.) On March 4, 2022, defense counsel has repeatedly attempted to discuss this matter with Plaintiff’s counsel and requested that Plaintiff's counsel provide deposition dates which would be convenient for Plaintiff and Plaintiff's counsel for this deposition. (Lenkov Supp. Decl., ¶ 8.) Plaintiff's counsel has failed and refused to provide dates for the deposition. (Id., ¶ 7.)

In opposition, Plaintiff argues that on October 6, 2022, Defendant took Plaintiff’s deposition and thus, this motion is moot. Plaintiff also argues that sanctions are not appropriate because Plaintiff was ill and could not attend the March 3, 2022 deposition and defense counsel was informed of this. (Pakradouni Decl., ¶ 4.) Plaintiff argues that on March 1, 2022, he offered alternative dates but defense counsel did respond. (Id., ¶¶ 5-6.) Plaintiff argues that defense counsel never inquired about the non-appearance and that his supplemental declaration does not show that he inquired about the non-appearance. Thus, Plaintiff argues that sanctions should be denied.

The Court finds that as Plaintiff appeared for deposition on October 6, 2022, the motion is moot. As to sanctions, the Court finds that Plaintiff did offer alternative dates and that defense counsel did not respond. The Court also finds that defense counsel’s subsequent correspondence was not a good faith attempt at meeting and conferring as he simply emailed Plaintiff’s counsel with: “How long have I waited” on March 4, 2022; “no response from your side” on March 14, 2022; “I have never seen anything like this” on April 26, 2022; and “no response” on May 3, 2022. (Lenkov Suppl. Decl. Exhs. A-B.) These are not good faith attempts at meeting and conferring to set up a deposition date. As such, Plaintiff has acted with substantial justification and sanctions are DENIED.

Conclusion 

Accordingly, Defendant’s motion to compel the deposition of Plaintiff is DENIED as MOOT. Sanctions are DENIED.

Moving party is ordered to give notice.