Judge Serena R. Murillo, Case 20STCV36044 2023-03-27 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV36044, Date: 2023-03-27 Tentative Ruling

Case Number: 20STCV36044 Hearing Date: March 27, 2023 Dept: 29

TENTATIVE

Defendant Los Angeles County Metropolitan Transportation Authority’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Laura Elisa Rodriguez is ordered to appear for deposition set for March 28, 2023, or on a mutually convenient date for the parties, within 30 days of this order. 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).)

Discussion

On March 10, 2021, Defendant served a Notice of Taking Deposition of Rodriguez set for May 4, 2021. (Adelpour Decl., Exh. A.) Since then, the deposition has been noticed six times, but has yet to move forward. (Id., ¶ 5.) On January 4, 2023, Defense counsel contacted Plaintiff’s counsel to determine if the deposition set for January 10, 2023 was to move forward, after which Plaintiff’s counsel advised that Plaintiff has undergone surgery and could no longer sit for her deposition. Defense counsel requested that Plaintiff's counsel provide updates as to Plaintiff’s recovery and when she expects to be ready and willing to sit for her deposition. (Id., ¶ 6.) On January 17, 2023, February I3, 2023, and February 27, 2023, defense counsel again requested updates and dates for Plaintiff’s deposition, as it had not heard from Plaintiff’s counsel, but Plaintiff's counsel did not respond. (Id., ¶ 7.)

Plaintiff argues in opposition that Plaintiff’s counsel had objected to two of the notices of deposition based on the depositions being unilaterally set and counsel was unavailable. (Nalbandyan Decl., ¶¶ 4-5; Exhs. 2-4.) Further, as to the other notices, (1) there was a mix-up in the deposition dates, (2) there were “unexpected issues,” and (3) counsel was unexpectedly unavailable. (Id., ¶¶ 9-11; Exhs. 5-8.) On January 4, 2023, Plaintiff’s counsel spoke with Defendant and explained that Plaintiff was dealing with health complications that was making it difficult to set a date for the deposition. (Id., ¶ 12.) Plaintiff recently had her leg amputated due to ongoing complications with her diabetes and was required to be on strong pain killers. (Id., ¶ 13.) Defendant is correct in that it requested status updates and new dates for Plaintiff’s deposition on January 17, 2023, February 7, 2023, and February 13, 2023; however, Plaintiff made it clear to Defendant during the phone call on January 4, 2023 that Plaintiff’s counsel would follow-up once Plaintiff’s counsel was able to obtain a status from Plaintiff as to the status of her recovery and when she was able to sit for a deposition following the extensive surgery she underwent. (Id., ¶ 14.) Thus, on March 9, 2023, Plaintiff’s counsel followed-up with Defendant and advised them that Plaintiff was available on March 21, 28, and 30. (Id., ¶ 15; Exh. 9.) Thereafter, on March 9, 2023, Defendant served a notice of Plaintiff’s deposition, setting the deposition for March 28, 2023. (Id., ¶ 15; Exh. 10.)

The Court that Defendant has attempted to depose Plaintiff six different times over the course of two years, to no avail. Further, Plaintiff does not argue she had valid objections to the notices of deposition when she canceled because there was a mix-up in the deposition dates, there were unexpected issues, and counsel was unexpectedly unavailable. Thus, as Plaintiff was properly served with the deposition notices, did not object to all of them, and failed to appear for deposition, the motion to compel Plaintiff to appear for deposition is GRANTED. Plaintiff is ordered to appear for deposition set for March 28, 2023, or on a mutually convenient date within 30 days of this order.

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).)

In opposition, Plaintiff provides that she recently had her leg amputated due to ongoing complications with her diabetes and was required to be on strong pain killers. As such, the Court finds that the imposition of sanctions would be unjust in these circumstances, and denies Defendant’s request for sanctions at this time. Moreover, it appears that Plaintiff’s counsel attempted to provide dates and was communicative with defense counsel in this matter, and thus, substantial justification has been shown, and Defendant has not filed a reply to argue otherwise.

Conclusion

Accordingly, Defendant Los Angeles County Metropolitan Transportation Authority’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Laura Elisa Rodriguez is ordered to appear for deposition set for March 28, 2023, or on a mutually convenient date for the parties, within 30 days of this order. The request for sanctions is DENIED.

Moving party is ordered to give notice.