Judge Serena R. Murillo, Case 22STCV04146 2023-02-06 Tentative Ruling

Judge: Serena R. Murillo, Case: 22STCV04146, Date: 2023-02-06 Tentative Ruling

Case Number: 22STCV04146 Hearing Date: February 6, 2023 Dept: 29

Toni Gomez v. Kimloan Lim

Monday, February 6, 2023

CASE NUMBER: 22STCV04146

OPPOSED

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Motion to Compel Attendance at Deposition and Request for Sanctions filed by Plaintiff Toni Gomez

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Background

On February 2, 2022, Plaintiff Toni Gomez filed a complaint against Defendant Kimloan Lim, for motor vehicle and general negligence, arising out of a vehicle collision that occurred on May 29, 2021.

On February 16, 2022, Plaintiff served Defendant.

On March 18, 2022, Defendant filed an answer.

On April 13, 2022, Plaintiff amended the complaint to name Puthy Davidson as a defendant.

On July 26, 2022, Plaintiff filed a motion to compel Defendant Davidson’s attendance at a deposition and requested sanctions. On January 13, 2023, Defendant filed an opposition. On January 30, 2023, Plaintiff filed a reply.

Summary

Moving Arguments

Plaintiff moves for a court order compelling Defendant Davison to appear for a deposition. Defendant has failed to appear for his deposition without justification or response to Plaintiff’s inquiries.

Opposing Arguments

Defendant argues in opposition the Notice of Deposition demands the Responding Party provide alternative dates within five days for Defendant to appear at Deposition within the next 35 days. Completing such a request is nearly impossible, especially taking into account days for mailing. Additionally, given that the Notice of Deposition was served prior to Plaintiff’s counsel receiving Defendant’s Answer to Complaint, it is more likely than not that Plaintiff would need to reschedule the deposition, at least until initial written discovery responses were received. Furthermore, Defendant Davison was never properly served with the documents. On January 5, 2022, Defense counsel sent Plaintiff’s counsel an e-mail in an attempt to provide available dates to for the Deposition of Defendant Davison. (Exhibit B). Defense counsel was attempting to avoid having to go through the hearing for Plaintiff’s Motion and work with them to set up a time to hold the deposition. To date, Plaintiff s attorney has not provided any response to this e-mail. Defendant seeks sanctions against Plaintiff.

Reply Arguments

Plaintiff argues Plaintiff timely served Defendant with the Notice of Deposition on May 26, 2022 pursuant to Code of Civil Procedure section 2025.210, which states:

“(a) The defendant may serve a deposition notice without leave of court at any time after that defendant has been served or has appeared in the action, whichever occurs first.

(b) The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.”

Plaintiff waited the required 20 calendar days period before serving its Notice of Deposition to Defendant Puthy Davison. Furthermore, Defendant’s counsel, Laura Matteis, Esq., who at the time represented only Defendant Kimloan Lim, was included in the Proof of Service that was served to Defendant Puthy Davison at the incorrect address. Thus, Defendant’s Counsel had notice of Plaintiff’s Notice to depose Defendant Puthy Davison, as well as Plaintiff’s inadvertent mistake to serve the incorrect address on record for Defendant Puthy Davison. Plaintiff contends it served Defendant at the incorrect address, however Plaintiff agreed to sign a stipulation to Set Aside Default Judgment against Defendant Puthy Davison due to Plaintiff’s inadvertent mistake, which was ultimately granted by the Court.

Legal Standard

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.)

Where a deponent fails to appear at a deposition or produce documents at a deposition, Code of Civil Procedure section 2025.450 permits a party to seek a motion to compel a deposition. The motion is permissible after a party fails to appear without having served a valid objection pursuant to Code of Civil Procedure § 2025.410. (Code Civ. Proc., § 2025.450(a).)

The motion must include specific facts demonstrating good cause for the production of documents or items and must be accompanied by a declaration setting forth facts demonstrating that a good faith and reasonable attempt at informal resolution has been made. (Code Civ. Proc., § 2025.450(b).)

The motion must be accompanied by a declaration setting forth facts demonstrating that a good faith and reasonable attempt at informal resolution has been made. When a deponent fails to appear for deposition, the party making the motion must contact the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450 (b)(2).

CCP section¿2025.450(g)(1) 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.” (Code Civ. Proc., § 2025.450(g)(1).)

Discussion

On May 26, 2022, Plaintiff served her Notice of Taking Deposition and set the deposition of Defendant Davison for June 24, 2022. (Franco Decl., Exh. 1.) On June 24, 2022, Defendant failed to appear at his properly noticed deposition. Plaintiff was forced to take a certificate of non-appearance and incurred costs due to Defendant’s failure to appear. (Id., Exh. 2.) On June 27, 2022, Plaintiff’s counsel sent correspondence to Defendant regarding the failure to appear at his deposition. In the letter, Plaintiff’s counsel attempted to meet and confer with Defendant to find alternative dates to schedule Defendant’s deposition. (Id., Exh. 3.) Defendant never responded to the June 27, 2022 correspondence. Additionally, Plaintiff to date has been unable to schedule Defendant’s deposition or obtain potential future dates from Defendant.

Defendant argues in opposition the Notice of Deposition demands the Responding Party provide alternative dates within five days for Defendant to appear at Deposition within the next 35 days. Completing such a request is nearly impossible, especially taking into account days for mailing. Additionally, given that the Notice of Deposition was served prior to Plaintiff’s counsel receiving Defendant’s Answer to Complaint, it is more likely than not that Plaintiff would need to reschedule the deposition, at least until initial written discovery responses were received. Furthermore, Defendant Davison was never properly served with the documents, as they were sent to an incorrect address. On January 5, 2022, Defense counsel sent Plaintiff’s counsel an e-mail in an attempt to provide available dates to for the Deposition of Defendant Davison. (Matteis Decl., Exh. B.) Defense counsel was attempting to avoid having to go through the hearing for Plaintiff’s Motion and work with them to set up a time to hold the deposition. To date, Plaintiff s attorney has not provided any response to this e-mail. Defendant seeks sanctions against Plaintiff.

Plaintiff argues in reply that Plaintiff timely served Defendant with the Notice of Deposition on May 26, 2022 pursuant to Code of Civil Procedure section 2025.210, which states:

“(a) The defendant may serve a deposition notice without leave of court at any time after that defendant has been served or has appeared in the action, whichever occurs first.

(b) The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.”

(Code Civ. Proc., § 2025.210.)

Plaintiff argues she waited the required 20 calendar days period before serving its Notice of Deposition to Defendant Puthy Davison. Further, Plaintiff argues that Defendant’s counsel, who at the time represented only Defendant Kimloan Lim, was included in the Proof of Service that was served to Defendant Puthy Davison at the incorrect address. Thus, Plaintiff argues that Defendant’s Counsel had notice of Plaintiff’s Notice to depose Defendant Puthy Davison, as well as Plaintiff’s inadvertent mistake to serve the incorrect address on record for Defendant Puthy Davison. Although Plaintiff served Defendant at the incorrect address, Plaintiff agreed to sign a stipulation to Set Aside Default Judgment against Defendant Puthy Davison due to Plaintiff’s inadvertent mistake, which was ultimately granted by the Court. As to Defendant’s attempt to meet and confer on January 5, 2023, Plaintiff argues that defense counsel only offered dates after the motion was filed. Defendant waited approximately three months to proffer available dates for Plaintiff to hold the deposition of Defendant.

First the Court finds that the motion was timely made under Code of Civil Procedure section 2025.210, which states: “…an oral deposition may be taken as follows: . . . . (b) The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. Here, the complaint was served on Defendant Kimloan Lim on February 10, 2022. Thus, as Defendant was served with the notice of deposition on May 26, 2022, more than 20 days passed after the service of the summons on any defendant.

However, both parties agree that Defendant was served with the deposition notice at an incorrect address. While defense counsel was also sent the deposition notice, it is not clear whether defense counsel represented Defendant Davison at that time as Defendant had not yet made an appearance in this case, and an attempt was made to serve Davidson at his address, indicating defense counsel did not represent him yet. The parties’ stipulation to set aside the default judgment against Davidson due to Plaintiff’s inadvertent mistake of sending the complaint to the wrong address is of no help as to whether there was proper service of the deposition notice on Defendant Davidson, to now compel him to appear. Moreover, the Court finds that as Plaintiff did not respond to Defendant’s January 5, 2023 meet and confer attempt, that the parties have failed to properly meet and confer. Lastly, the deposition notice also seeks the production of documents, but Plaintiff’s motion does include specific facts demonstrating good cause for the production of documents. (Code Civ. Proc., § 2025.450 (b)(2). As such, the motion cannot be granted.

As the motion cannot be granted, Plaintiff’s request for sanctions against Defendant is denied.

Defendant seeks sanctions against Plaintiff in the motion, arguing Plaintiff’s counsel has been engaging in gamesmanship and abuse of discovery. However, Under CCP section 2023.040, “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” Here, Defendant’s notice of motion does not seek sanctions. As such, Defendant’s request for sanctions is denied. Nevertheless, it does not appear that Plaintiff intentionally sent the notice of deposition to the wrong address, but rather, it was an inadvertent mistake.

The Court orders the parties to meet and confer as to this matter in order to avoid further motion practice and sanctions on this issue. Assuming there is proper service of the deposition notice, the Court would then be inclined to grant the motion, in the event the matter is not resolved and Plaintiff files another motion.

Conclusion

Based on the foregoing, Plaintiff’s motion to compel the deposition of Defendant is DENIED without prejudice. Both parties’ requests for sanctions are DENIED.