Judge Serena R. Murillo, Case 21STCV03331 2023-04-13 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV03331, Date: 2023-04-13 Tentative Ruling

Case Number: 21STCV03331 Hearing Date: April 13, 2023 Dept: 29

TENTATIVE

Defendant Gurgen Chitchyan’s motions to compel the deposition of Plaintiffs are CONTINUED. Defendant is ordered to submit evidence showing defense counsel inquired about the non-appearances. Plaintiffs Ani Muradyan and Sirvard Pakhanyan are encouraged to proceed with their depositions set for April 25, 2023, to avoid being compelled to appear by this Court and to avoid potentially being ordered to pay defense counsel’s fees and costs associated with bringing these motions to compel.

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 February 24, 2022, Defendant served a Notice of Taking Deposition of Plaintiffs Ani Muradyan and Sirvard Pakhanyan set for April 25, 2022. (Cadena Decl., Exhs. A.) On April 22, 2022, defense counsel spoke to Plaintiffs’ counsel who stated that they just returned from medical leave and the deposition would need to be rescheduled. (Id., ¶ 3.) On May 25, 2022, Defendant properly served Plaintiff with a second Notice of Taking Deposition, set for August 23, 2022. (Id., Exhs. B.) Plaintiffs objected to the deposition notice because it was unilaterally scheduled. (Id., ¶ 6.) The parties agreed to schedule the deposition on November 8, 2022. (Id., ¶ 8.) On August 10, 2022, Defendant properly served Plaintiffs with a third Notice of Taking Deposition, set for November 8, 2022. (Id., Exhs. E.) On October 28, 2022, Plaintiff served an objection stating that it was unilaterally set. (Id., Exhs. F.) The parties then agreed to take the deposition on January 13, 2023. (Id., Exhs. G.) On November 4, 2022, Defendant properly served Plaintiff with a fourth Notice of Taking Deposition, set for January 13, 2023. (Id., Exhs. H.) On January 5, 2023, Plaintiffs’ counsel asked to reschedule the deposition, however, defense counsel was unwilling to reschedule as they have been trying to obtain Plaintiffs’ deposition for nearly a year and have served four deposition notices. On January 13, 2023, Plaintiffs did not appear at their depositions. (Id., ¶ 14.)

Plaintiff argues in opposition that Defendant unilaterally noticed Plaintiffs’ deposition the first time for April 25, 2022, which had to be continued on account of the unilaterally chosen date. (Karapetian Decl., ¶ 3.) The continued dates of August 23, 2022 and November 8, 2022 were rescheduled because Plaintiffs’ counsel was on medical/maternity leave. (Id., ¶ 4.) As to the last deposition notice, Plaintiffs argue that their counsel’s legal assistant and defense counsel’s legal assistant continued the deposition dates to February 16, 2023 because Plaintiffs had a calendar conflict, however, defense counsel then contacted Plaintiffs’ counsel and stated she did not agree to a continuance. (Id., ¶ 6; Exh. 2.) On February 13, 2023, Plaintiffs and Plaintiffs’ counsel were available and ready to proceed with the deposition calendared for February 16, 2023. (Id., ¶ 10, Exh. 6.) However, because they could not find an amended notice to determine who would be deposed first, Plaintiffs’ counsel emailed defense counsel inquiring as to whether the depositions would proceed. (Id.) Defense counsel did not respond. (Id. ¶ 11.) Had a response been received, Plaintiffs would have attended their February 16, 2023 depositions. (Id.) Plaintiffs depositions are currently set for April 25, 2023, and thus, Plaintiffs argue an order to compel them is not necessary.

As a preliminary matter, the Court finds Plaintiffs’ objections based on the depositions being unilaterally set are not valid grounds for objecting to deposition notices. (Code Civ. Pro. § 2025.410(a).) However, it appears that the parties agreed to continue the first three notices of deposition. Nevertheless, the last deposition’s continuance was not agreed upon by defense counsel, and it appears Plaintiffs failed to appear. However, defense counsel’s declaration is silent as to her meet and confer efforts to inquire about the nonappearance. (Code Civ. Pro. § 2025.450(b).) Defendant appears to rely on meet and confer efforts prior to the missed deposition, however the Court finds this insufficient as required by CCP section 2025.450(b)(2). Moreover, Plaintiffs’ counsel states that she offered alternative dates for the depositions and that the parties have scheduled the depositions to take place on April 25, 2023.

Therefore, the motion is CONTINUED. Defendant is ordered to submit evidence showing defense counsel inquired about the non-appearances. Plaintiffs are encouraged to proceed with their depositions set for April 25, 2023, to avoid being compelled to appear by this Court and to avoid potentially being ordered to pay defense counsel’s fees and costs associated with bringing these motions to compel.

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).)

Sanctions against Plaintiffs will be addressed at the next hearing depending on whether there is evidence regarding defense counsel’s meet and confer efforts after the non-appearances. However, the Court is not inclined to grant sanctions if Plaintiffs appear at their April 25, 2023 scheduled deposition.

Conclusion

Accordingly, Defendant’s motions to compel the deposition of Plaintiffs are CONTINUED. Defendant is ordered to submit evidence showing defense counsel inquired about the non-appearances. Plaintiffs are encouraged to proceed with their depositions set for April 25, 2023, to avoid being compelled to appear by this Court and to avoid potentially being ordered to pay defense counsel’s fees and costs associated with bringing these motions to compel.

Moving party is ordered to give notice.