Judge: Stephen Morgan, Case: 20AVCV00471, Date: 2023-11-14 Tentative Ruling
Department A14 Tentative Rulings
If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.
If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.
Case Number: 20AVCV00471 Hearing Date: November 14, 2023 Dept: A14
Background
This is a motor vehicle –
personal injury action. Plaintiff Erica Joan Walling (“Plaintiff”) alleges that
on or around November 06, 2019 on or around 40th Street West near Avenue J-8 in
Lancaster, County of Los Angeles, California, Defendant Sherryl Lynn Hammond
(“Hammond”) was operating a motor vehicle while employed by Defendant Antelope
Valley Schools Transportation Agency (“AVSTA” and collectively “Defendants”) and
operated the motor vehicle negligently so as to be the legal cause of injuries
and damages to Plaintiff.
On July 14, 2020, Plaintiff filed
her Complaint alleging one cause of action for Motor Vehicle.
On December 29, 2021, AVSTA filed
its Answer.
On March 11, 2022, Hammond filed
her Answer.
On October 18, 2023, Defendants
filed this Motion to Compel the Deposition of Plaintiff (“Motion to Compel”).
On November 06, 2023, Defendants
filed a Notice of Non-Receipt of Opposition.
On November 07, 2023, Plaintiff
filed a document titled “Declaration of E. Forstrom in Opposition to
Defendant's MTC Deposition.” “All papers opposing a motion so noticed shall be
filed with the court and a copy served on each party at least nine court days.
. .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which
extends the time within which a right may be exercised or an act may be done,
does not apply to a notice of motion, papers opposing a motion, or reply papers
governed by this section.” (Ibid.) The hearing is scheduled for November
14, 2023. November 10, 2023 is a national holiday. Accordingly, an Opposition
was due by October 31, 2023. “No paper may be rejected for filing on the ground
that it was untimely submitted for filing. If the court, in its discretion,
refuses to consider a late filed paper, the minutes or order must so indicate.”
(Cal. Rules of Court, Rule 3.1300(d).) The Court, in its discretion, does not
consider the late-filed Opposition.
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Legal Standard
Standard for Motion to Compel Deposition – “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.)¿¿¿
¿
“If, after service of a deposition notice, a
party . . ., without having served a proper objection, 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 notice may move for an
order compelling deponent’s attendance and testimony, and the production . . .
of any document . . . described in the deposition notice.”¿¿(Cal. Code Civ.
Proc., §2025.450(a).)¿The motion must set forth both facts showing good cause
justifying the demand for any documents and a meet and confer declaration or a
declaration stating that the petitioner has contacted the deponent to inquire
about the nonappearance.¿(Cal. Code Civ. Proc., §2025.450(b)(1) –
(b)(2).)¿¿¿¿
¿¿¿
A court shall impose monetary sanctions if the motion to compel is
granted, unless the one subject to sanction acted with substantial
justification or other circumstances would make the imposition of the sanction
unjust. (Cal. Code Civ. Proc.,¿§2025.450(g)(1).)¿¿
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Meet
and Confer Requirement – Cal. Code Civ. Proc. § 2025.450(b) states: “[t]he
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.” It does not appear that a
meet and confer occurred. Instead, what is presented is that Defendants noticed
two depositions to which Plaintiff failed to appear and Defendants noticed two
other depositions, one on a mutually agreed upon date, to which Plaintiff’s
counsel’s firm, First Law Group, stated that they could not attend due to
scheduling conflicts. (See Decl. Quiller [generally].)
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Discussion
Application – Defendants
move to compel Plaintiff’s deposition. Defendants present that they served four
notices of depositions and Plaintiff has objected each time.
Defendants present that
Plaintiff’s deposition should be compelled under Cal. Code Civ. Proc. §
2023.540(a) and that, as Plaintiff has alleged significant injuries and damages
causes by Defendants, a deposition is needed to obtain detailed information
about the Plaintiff in order for Defendants to defend itself.
Exhibits 1 through 6 detail the
notices for Plaintiff’s deposition and the communications that Defendants have
had with First Law Group regarding them. Plaintiff has claimed a scheduling
conflict for two of deposition notices. (Exh. 4 [“Please be advised that due to
scheduling conflict, we are unable to move forward with plaintiff’s
unilaterally noticed deposition set for 8/25 at 10:00 a.m.”]; Exh. 6
[“Unfortunately, due to schedule conflict, we will be unable to move forward
with plaintiff’s deposition set for Friday, 10/6 at 11:00 a.m. We are gathering
dates of availability for November and will forward them once in receipt.”].) Quiller
presents that, as to the other two depositions, Plaintiff failed to appear.
(Decl. Quiller ¶ 3.)
The Court notes that the
Memorandum of Points and Authorities does not begin until after approximately
43 pages of exhibits. The Court requests that the parties file their documents
with the Memorandum of Points of Authorities prior to the exhibits.
The Court further notes, as this
is a motion to compel, the parties were required an Informal Discovery
Conference (“IDC”) prior to filing this motion under Department A14’s Courtroom
Rules.
The Court, however, exercises its
discretion to rule on this matter despite the failure to meet and confer under
Cal. Code Civ. Proc. § 2025.450(b) and the failure to schedule an IDC under
Department A14’s Courtroom rules.
There has been no reason
presented for Plaintiff’s failure to appear for two out of the four
depositions. It is also unclear as to why First Law Group would agree to a date
for a deposition that they and/or Plaintiff could not attend.
Accordingly, the Motion to Compel
is GRANTED.
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Sanctions
Defendants request sanctions in
the amount of $1,000.00 [4 hrs @ $250.00/hr].
Cal. Code Civ. Proc. §
2025.450(g)(1) provides:
If a motion under
subdivision (a) is granted, the court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) 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.
There has been no presentation as
to the reasoning behind Plaintiff’s failure to appear to two scheduled
depositions. There has been a presentation by First Law Group that, as to two
depositions, including the one to which First Law Group agreed upon, there were
scheduling conflicts.
As such, the Court imposes a
sanction of $1,000.00.
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Conclusion
Defendants Antelope Valley
Schools Transportation Agency and Sherryl Lynn Hammond’s Motion to Compel
Deposition of Plaintiff Erica Joan Walling is GRANTED.
A sanction of $1,000.00 is
imposed upon Plaintiff Erica Joan Walling and her counsel, Dean Hakkak, jointly
and severally.