Judge Serena R. Murillo, Case 21STCV28451 2022-10-06 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV28451, Date: 2022-10-06 Tentative Ruling

Case Number: 21STCV28451 Hearing Date: October 6, 2022 Dept: 29

Maria Cordova, et al. v. Children’s Hospital Los Angeles

Motion to Compel Attendance at Deposition filed by Defendant Children’s Hospital Los Angeles

TENTATIVE

Defendant Children’s Hospital of Los Angeles’ motion to compel the deposition of Plaintiff Litzy Flores is GRANTED. Plaintiff Litzy Flores is ordered to appear for deposition within 30 days of this order. Plaintiff’s 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 June 9, 2022, Defendant served upon Plaintiff a Notice of Taking Deposition of Plaintiff Litzy Flores to take place on June 29, 2022 at 10:00. (Kjar Decl., ¶ 2; Exh. A). Shortly prior to the deposition, counsel for plaintiff notified defense counsel that the witness was unavailable. However, they agreed to produce her for deposition on July 13, 2022. (Id., ¶ 3.) On June 27, 2022, Defendant served a second Notice of Taking Deposition, scheduled for July 13, 2022. (Id., ¶ 4; Exh. B.) No objection was served by Plaintiff in response to the Notice of Taking Deposition. (Id., ¶ 5.) On July 12, 2022, counsel for plaintiff unilaterally took the deposition of Plaintiff off calendar and refused to provide a new date for the deposition. (Id., ¶ 6.) Defense counsel advised that if no new date was provided, a Certificate of Non-Appearance would be obtained. (Id.) On July 13, 2022, a Certificate of Non-Appearance was obtained due to plaintiff’s failure to appear for deposition. (Id., ¶ 7; Exh. C.) Defense counsel attempted yet again to proceed with the deposition of Plaintiff and a third Notice of Taking Deposition was served, scheduling the deposition for July 27, 2022. (Id., ¶ 8; Exh. D.) No objection was served. (Id., ¶ 9.) The witness did not appear for her deposition and no new date was offered. (Id., ¶ 10.) On July 28, 2022, a fourth Notice of Taking Deposition was served, scheduling the deposition for the mutually agreed upon date of August 29, 2022. (Id., ¶ 11; Exh. E.) No Objection was served. (Id., ¶ 12.) On August 26, 2022, counsel for plaintiff unilaterally took the deposition off calendar. No new date was provided. (Id., ¶ 13.)

In opposition, Plaintiff argues that she lacks capacity and is unable to testify. Plaintiff contends she is a special needs child who suffers from a rare genetic disorder, Prader Willi Syndrome, that results in a number of physical, mental and behavior problems. (Ghermezian Decl., ¶ 6.)

California Evidence Code states that a person “is disqualified to be a witness if he or she is (1) [i]ncapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or (2) [i]ncapable of understanding the duty of a witness to tell the truth.” (Evid. Code, § 701.)

The burden of proof is on the party who objects to the proffered witness. (People v. Anderson (2001) 25 Cal.4th 543, 573.)

The Court notes that there is no physician declaration attesting to Plaintiff’s incapacity. The only evidence of her incapacity is her counsel’s representation. Thus, the Court finds that the evidence does not meet the high burden of showing that a matter of law, Flores is disqualified to be a witness. The evidence does not show that she is incapable of expressing herself or incapable of understanding the duty to tell the truth such that the Court should disqualify her at the deposition stage.

Accordingly, as Plaintiff was properly served with the notices of deposition, did not object under CCP section 2025.410, failed to appear, and failed to show that she lacks the capacity to testify, the motion to compel Plaintiff to appear for deposition is GRANTED. Plaintiff is ordered to appear for deposition within 30 days of this order.

The Court notes Defendant has not requested sanctions and thus, imposing sanctions against Plaintiff would be unjust.

However, Plaintiff requests sanctions against Defendant, arguing Defendant failed to meet and confer prior to filing this motion. The Court finds this argument unavailing as Defendant avers she met and conferred after obtaining a certificate of non-appearance and then served a fourth notice of taking the deposition. Further, Defendant has served four notices of taking Plaintiff’s deposition, and thus, the argument lacks merit. As such, Plaintiff’s request for sanctions is DENIED.

Conclusion

Accordingly, Defendant’s motion to compel the deposition of Plaintiff Litzy Flores is GRANTED. Plaintiff Litzy Flores is ordered to appear for deposition within 30 days of this order. Plaintiff’s request for sanctions is DENIED.

Moving party is ordered to give notice.