Judge: Stephen Morgan, Case: 20AVCV00171, Date: 2022-10-04 Tentative Ruling
Case Number: 20AVCV00171 Hearing Date: October 4, 2022 Dept: A14
Background
This is a premises liability action. Plaintiff Maria A. Garcia (“Plaintiff”) alleges that on or about January 08, 2020 she was at Defendant Winco Foods, LLC.’s (“Defendant”) premises located at 740 W. Ave K4, Lancaster, California, 93534 when she slipped and fell, sustaining damages in the form of injuries and related medical expenses .
On March 12, 2020, Plaintiff filed her Complaint alleging two (2) causes of action for: (1) Negligence and (2) Premises Liability.
On April 24, 2020, Defendant filed its Answer.
On August 22, 2022, Plaintiff filed this Motion to Compel Deposition of Defendant Winco Foods, LLC’s Person(s) most Knowledgeable and Request for Production of Documents at Deposition.
On September 21, 2022, Defendant filed its Opposition.
No Reply has been filed. “. . .[A]ll reply papers [shall be filed with the court and a copy served on each party] at least five court days before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The hearing is set for October 04, 2022. As such, an Opposition was due by September 27, 2022. Should an Opposition be filed, it is now untimely.
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Legal Standard
Standard for Compelling Deposition of Person Most Qualified (“PMQ”) – “Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Cal. Code Civ. Proc., § 2025.010.)
“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action . . . to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280, subd. (a).)
“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, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.” (Cal. Code Civ. Proc., § 2025.410(a).)
“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, . . . the party giving the notice may move for an order compelling the deponent's attendance and testimony . . . .” (Cal. Code Civ. Proc. § 2025.450(a).) “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[; and] ¶(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, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Cal. Code Civ. Proc.§ 2025.450(b).)
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Meet and Confer Requirement – A motion seeking to compel a deposition “shall be accompanied by a meet and confer declaration under Cal. Code Civ. Proc. § 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.” (Cal. Code Civ. Proc. § 2025.450(b)(2).)
Here, the declaration of Plaintiff’s counsel, Raymond Ghermezian (“Ghermezian”), states that a meet and confer process was initiated to provide new dates for the deposition. (Decl. Ghermezian ¶ 5.) Defendant assured Ghermezian that they are working on getting dates as well. (Ibid.) Despite this, Ghermezian inquired again as to Defendant’s availability for deposition in September and noticed the fourth deposition for September 08, 2022. (Id., ¶ 6.) Defendant provided objections. (Ibid.) Ghermezian did not inquire about the nonappearance.
Defendant’s counsel, Kelly J. Snowden (“Snowden”), presents that his office has been trying to coordinate the depositions for the six employees that are considered PMQs. (Decl. Snowden ¶ 4.) Plaintiff has been repeatedly unilaterally selecting dates while Snowden was trying to coordinate the depositions, including getting supervisors to approve schedules. (Id, ¶¶ 4-7, 9-12.) Snowden also states that a meet and confer effort was never made and he was not informed a Motion to Compel would be forthcoming. (Id., ¶¶ 3 and 7.)
The Court finds the meet and confer attempt insufficient. “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Cal. Code Civ. Proc. § 2016.040.) Based on the representations of both parties, a good faith attempt at a resolution of the issues in this motion (i.e., deposition dates) did not occur.
The parties shall meet and confer and select a mutually agreeable date for the deposition(s) within thirty (30) days of this Court Order.
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Conclusion
The Court declines to rule on Plaintiff Maria A. Garcia’s Motion to Compel Deposition of Defendant WinCo Foods, LLC’s Person(s) Most Knowledgeable and Request for Production of Documents at Deposition.
The parties shall meet and confer and select a mutually agreeable date for the deposition(s) within thirty (30) days of this Court Order.