Judge Serena R. Murillo, Case 21STCV17584 2023-05-01 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV17584, Date: 2023-05-01 Tentative Ruling

Case Number: 21STCV17584 Hearing Date: May 1, 2023 Dept: 29

TENTATIVE

Plaintiff Ramon Figueroa’s motion to compel the deposition of Defendant Charles James Von Lewis is CONTINUED. Plaintiff is ordered to submit evidence showing counsel inquired about the non-appearance. The parties are encouraged to set up Defendant’s deposition, either for the dates proposed by defense counsel, or choose alternative dates. Defendant Lewis is encouraged to proceed with his deposition to avoid being compelled to appear by this Court and to avoid potentially being ordered to pay Plaintiff’s counsel’s fees and costs associated with bringing this motion.

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 January 3, 2022, Plaintiff served a notice of deposition on Defendant Lewis setting a February 1, 2022 deposition date. (Joy Decl., ¶ 3; Exh. A.) Defendant Lewis’ deposition was subsequently taken off calendar. (Id., ¶ 4.) On August 10, 2022, Plaintiff served an amended notice of deposition on Defendant Lewis setting a September 7, 2022 deposition date. (Id., ¶ 5; Exh. B.) On September 6, 2022, Defendant’s counsel emailed Plaintiff’s counsel asking to continue the deposition to either September 14 or15 because she was not feeling well. (Id.,¶ 6; Exh. C.) On September 6, 2022, Plaintiff served second amended notice of deposition on Defendant Lewis setting a September 14, 2022 deposition date. (Id., ¶ 7; Exh. D.) On September 13, 2022, Plaintiff’s counsel emailed Defendant’s counsel confirming if Defendant Lewis would appear for his deposition set for September 14, 2022. (Id., ¶ 8; Exh. C.) Defendant Lewis’ counsel informed Plaintiff’s counsel that she has not heard from Defendant. (Id.) Defendant Lewis did not appear for his properly noticed deposition on September 14, 2022. (Id., ¶ 9; Exh. E.) To date, Defendant Lewis has not made himself available for his deposition. (Id., ¶ 10.)

Defendant argues in opposition that defense counsel has substituted into this case for Defendants in January of 2023. (Kezbar Decl., 4.) Defendant has made himself available for his deposition and has offered to be deposed on any date between May 15 through May 19. (Kezbar Decl., ¶ 5.) On April 14, 2023, Defendants’ counsel spoke to Plaintiff’s counsel, and provided him with the dates Defendant Lewis is available for his deposition and stated that if none of these proposed dates work for Plaintiff’s counsel, Defendant Lewis can be made available on a different date. (Id.)

Plaintiff’s counsel’s declaration is silent as to the meet and confer efforts to inquire about the nonappearance. (Code Civ. Pro. § 2025.450(b).) Moreover, defense counsel states that dates were offered for the deposition of Lewis.

Therefore, the motion is CONTINUED. Plaintiff is ordered to submit evidence showing Plaintiff’s counsel inquired about the non-appearance. Defendant is encouraged to proceed with his deposition before the next hearing on this motion to avoid being compelled to appear by this Court and to avoid potentially being ordered to pay Plaintiff’s counsel’s fees and costs associated with bringing this motion 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 Defendant will be addressed at the next hearing. However, the Court is not inclined to award sanctions if Defendant appears for deposition prior to the next hearing on this motion, as the motion will be moot and CCP section¿2025.450(g)(1) depends on the granting of this motion. Further, sanctions would be unjust in light of new defense counsel’s cooperation with Plaintiff’s counsel to produce Lewis for deposition. As such, in the event Defendant appears for deposition prior to the next hearing on this motion, this motion should be taken off calendar. In the event the parties are able to choose a mutually available date and Defendant fails to appear, sanctions will be considered.

Conclusion

Accordingly, Plaintiff’s motions to compel the deposition of Defendant is CONTINUED. Plaintiff is ordered to submit evidence showing counsel inquired about the non-appearance. The parties are encouraged to set up Lewis’ deposition, either for the dates proposed by defense counsel, or choose alternative dates. Defendant Lewis is encouraged to proceed with his deposition to avoid being compelled to appear by this Court and to avoid potentially being ordered to pay Plaintiff’s counsel’s fees and costs associated with bringing this motion.

Moving party is ordered to give notice.