Judge: Serena R. Murillo, Case: 21STCV08273, Date: 2023-03-02 Tentative Ruling
Case Number: 21STCV08273 Hearing Date: March 2, 2023 Dept: 29
TENTATIVE
Plaintiff’s
motion to compel Defendant’s deposition is DENIED.
Legal Standard
CCP¿section¿2025.450(a) provides:¿“If, after service of a deposition
notice, a party to the action or an officer, director, managing agent, or
employee of a party, or a person designated by an organization that is a party
under Section 2025.230, 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
comply with both of the following:¿¿
¿
1. The motion shall
set forth specific facts showing good cause justifying the production for
inspection of any document, electronically stored information, or tangible
thing described in the deposition notice.¿¿
¿
2. The motion 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, a declaration stating that the petitioner has contacted the deponent to
inquire about the nonappearance.”¿¿
¿
(Id., § 2025.450(b).)¿
CCP¿section¿2025.450(c) provides, “(1) If a motion under subdivision (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.”¿ (Id., §
2025.450(c).)¿
Discussion
On August 13, 2021, Plaintiff served a notice of deposition and request
for production of documents on Defendant. (Zeesman Decl. ¶ 5, Ex. 1.) The
deposition was set for September 17, 2022. On September 17, 2022, Defendant
objected to the deposition. (Zeesman Decl. ¶ 6, Ex. 2.) Plaintiff reached out
to meet and confer to provide available dates for deposition. (Zeesman Decl. ¶
7, Ex. 3.) Plaintiff states that Defendant indicated that the party-deponent
would not appear until she reviewed additional facts related to the incident
and/or a protective order was entered. (Zeesman Decl. ¶ 8.) As of the date of
filing this motion, Defendant had not produced deponent or produced the
records.
In opposition, Defendant argues that the motion is moot because Defendant
produced its person most knowledgeable (“PMK”) for deposition on April 19,
2022, with responses to Plaintiff’s request for production on April 18, 2022.
(Mendoza Decl. ¶ 1.) Defendant states that Plaintiff’s counsel “suspended” the
deposition, notwithstanding Defendant’s PMK being present and willing to answer
questions. Defendant states that counsel agreed to revisit areas of dispute and
proposed dates for the continued deposition.
Based on Defendant’s statements that it produced a PMK for deposition on
April 19, 2022, and produced the requested documents on April 18, 2022, the
motion to compel Defendant’s deposition and production of documents is moot.
Further, Plaintiff has not put forward any showing of good cause with
specific facts justifying production of the documents set forth in the
deposition notice. To the extent that Plaintiff is unsatisfied with Defendant’s
production of documents and appearance at the deposition on April 19, 2022, the
proper motion to be brought is a motion to compel further.
Defendant requests $1,572.50 in monetary sanctions pursuant to Code of
Civil Procedure section 2023.010. The Court declines to award sanctions in this
case, as the Court finds that Plaintiff acted with substantial justification in
bringing this motion, as Defendant had not appeared for deposition at the time
of filing this motion.
Conclusion
Plaintiff’s
motion to compel Defendant’s deposition is DENIED.
Moving party is ordered to give notice.