Judge: Serena R. Murillo, Case: 20STCV29601, Date: 2022-12-08 Tentative Ruling
Case Number: 20STCV29601 Hearing Date: December 8, 2022 Dept: 29
TENTATIVE
Defendant’s motion to compel Plaintiff’s deposition and to produce documents is GRANTED. The Court declines to impose monetary sanctions.
Legal Standard
Compel Deposition and Produce
Documents
Any party may obtain discovery,
subject to restrictions, by taking the oral deposition of any person, including
any party to the action. (Code Civ.
Proc., § 2025.010.) A properly served
deposition notice is effective to require a party or party-affiliated deponent
to attend and to testify, as well as to produce documents for inspection and
copying. (Code Civ. Proc., §
2025.280(a).)
The party served with a deposition
notice waives any error or irregularity unless that party promptly serves a
written objection at least three calendar days prior to the date for which the
deposition is scheduled. (Code Civ.
Proc., § 2025.410(a).)
“If, after service of a deposition
notice, a party . . . without having served a valid objection . . . 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 notice may
move for an order compelling deponent’s attendance and testimony, and the
production . . . of any document . . . described in the deposition
notice.” (Code Civ. Proc., § 2025.450(a).) The motion must be supported by a meet and
confer declaration with facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.)
Monetary Sanctions
Under Code of Civil Procedure section
2023.010(d), misuse of the discovery process includes “[f]ailing to respond or
to submit to an authorized method of discovery.” The court may order sanctions to cover “the reasonable
expenses, including attorney’s fees, incurred by anyone as a result of” the
misuse of the discovery by the party being sanctioned. (Code Civ. Proc. § 2023.030(a).)
But “sections
2023.010 and 2023.030 do not independently authorize the
trial court to impose monetary sanctions for misuse of discovery. (City of Los Angeles v.
PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, ___ [300 Cal.Rptr.3d
432], this newly-newly published case does not yet have page numbers in the
official reporter.) The award of
monetary sanction must be based on another provision of the Discovery Act, Code
of Civil Procedure section 2016.010 et seq.
Discussion
Compel Deposition and Produce Documents
As a preliminary matter, Defendant sent Plaintiff’s counsel a meet and
confer letter, which was left unanswered.
(Motion p. 3; Randall Decl. ¶ 2; Exh. C.) This satisfies the meet and confer
requirement
Since June 2021, Defendant repeatedly tried to obtain the deposition
of the Plaintiff and to discuss this issue with Plaintiff and Carpenter. (Motion, Exh. C.) According to Defendant, Carpenter advised
Defendant that Plaintiff would be available in late September or early October
for the deposition. (Motion p. 3.)
On November 5, 2021, Defendant noticed the deposition of the Plaintiff
for November 24, 2021, with a Request for Production of Documents. (Motion, Exh. A.) According to Defendant, Carpenter objected and
provided December 23, 2021, and January 6 and 12, 2022, as alternate dates,
though the January dates were beyond the discovery cut-off. (Motion p. 3.) Defendant’s counsel requested alternate dates
and a stipulation to continue the trial. Defendant’s counsel further indicated that if
the alternate dates and the stipulation to continue the trial were not
provided, the November 24, 2021, date for the Plaintiff’s deposition would stay
on calendar. Carpenter failed to
acknowledge this communication and failed to provide any further alternate
dates. (Motion, Exh. C.)
Defendant’s counsel and a court reporter were prepared to continue
with the deposition on November 24, 2021, but Plaintiff failed to appear. (Motion p. 3; Motion, Exh. B.) Defendant did not take a statement of
non-appearance. (Motion, Exh. B.) Carpenter later proposed a deposition date of
December 23, 2021, then again suggested the dates of January 6 and 12, 2022. (Motion p. 3.)
Defendant’s motion is appropriate in light of Plaintiff’s repeated
failure to schedule and appear at her deposition and produce documents. Defendant contacted Plaintiff’s counsel and
scheduled the deposition around Plaintiff’s stated unavailability. (Motion, Exh. C.) Plaintiff failed to appear at the noticed
date, and Plaintiff’s counsel failed to propose alternate dates before
discovery cut-off. (Motion, Exh. B;
Motion p. 3.) Therefore, the motion to
compel Plaintiff’s deposition and to produce documents is granted.
Monetary Sanctions
Defendant only cites to Code of Civil Procedure section 2023.030 in
support of its request for monetary sanctions.
As discussed above, section 2023.030 does not independently authorize
the Court to impose monetary sanctions. Therefore,
the Court declines to impose monetary sanctions.
Conclusion
Accordingly, Defendant’s motion to compel Plaintiff’s
deposition and to produce documents is GRANTED.
The Court declines to impose
monetary sanctions.
Moving party is ordered to give notice.