Judge: Serena R. Murillo, Case: 21STCV13904, Date: 2022-10-10 Tentative Ruling

Case Number: 21STCV13904    Hearing Date: October 10, 2022    Dept: 29

Star Gorosin v. Spencer Anthony Duke Hubbard

Motion to Compel Attendance at Deposition filed by Defendant Spencer Anthony Duke Hubbard

TENTATIVE 

Defendant Spencer Anthony Duke Hubbard’s motion to compel the deposition of Plaintiff is DENIED. Sanctions are 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, which states: “Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled…” (Code Civ. Proc. 2025.410, subd. (a).)

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 January 31, 2022, Defendant served upon Plaintiff a Notice of Taking Deposition of to take place on March 16, 2022. (Tseng Decl., ¶ 2; Exh. A). Plaintiff objected to the notice on March 16, 2022, nearly two months later and only six days before it was to occur. (Id., Exh. B.) The reasons given for the objection included, among other issues, that the date was "unilaterally selected" and that neither Plaintiff's counsel nor Plaintiff were available on that date. (Id.) Defendant argues that Plaintiff offered no alternative dates, but instead wasted two months leading up to the objection and never once suggesting that the noticed date would not work between January 31, 2022 and March 16, 2022. Defendant argues he emailed Plaintiff’s counsel and requested available dates to no avail. (Id., ¶ 5.)

In opposition, Plaintiff argues that Plaintiff timely served objections to Defendant’s unilaterally noticed deposition. Further, Plaintiff argues this motion is moot as Plaintiff appeared for and completed her deposition as soon as Defendant exercised the courtesy (as mandated by the Guidelines for Civility) of giving consideration to the schedule of Plaintiff and her counsel.

The Court finds that the motion is moot as Plaintiff’s deposition has already taken place. Further, the Court notes that Plaintiff timely and validly served an objection to the deposition notice, and thus, sanctions are not warranted against either party.

Conclusion 

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

Moving party is ordered to give notice.