Judge: Stephen Morgan, Case: 21AVCV00432, Date: 2022-09-29 Tentative Ruling

Case Number: 21AVCV00432    Hearing Date: September 29, 2022    Dept: A14

Background

This is a motor vehicle – personal injury action. Plaintiff Juan Carlos Pacheco Baez (“Plaintiff”) alleges that on or about June 02, 2019, at SR-14, north of Avenue O in Palmdale, CA, Defendant Dale Richard Gerhart (“Gerhart”) was operating, with permission, a vehicle owned by Defendants Michael Rodriguez (“Rodriguez”) and 3 Filly’s Trucking, LLC (“3 Filly’s Trucking”) and so operated said motor vehicles so as to proximately cause injuries and damages to Plaintiff.

On May 27, 2021, Plaintiff filed his Complaint, alleging one cause of action for Personal Injury – Motor Vehicle.  

On January 19, 2021, 3 Filly’s Trucking filed its Answer.

On August 13, 2021, Gerhart and Rodriguez (collectively “Defendants”) filed their Answer.

On April 11, 2022, 3 Filly’s Trucking was dismissed.

On September 02, 2022, Gerhart filed this Motion to Compel Plaintiff’s Deposition (“Motion to Compel”).

On September 12, 2022, Plaintiff filed both an Opposition and an Amended Opposition.

On September 21, 2022, Defendants filed their Reply.

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Analysis

Standard for Compelling Depositions – “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 or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Cal. Code Civ. Proc. § 2024.280(a).) 

Cal. Code of Civil procedure section 2025.450(a) provides a mechanism by which to compel the deposition of a party. “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under¿Section 2025.230, 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, electronically stored information,¿or tangible thing 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, electronically stored information,¿or tangible thing described in the deposition notice.”¿ 

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Meet and Confer Requirement –The Motion to Compel a Deposition must be accompanied by a good faith 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)(2).)¿The declaration of Gerhart’s counsel, Derek T. Lawson (“Lawson”), includes the original notice of deposition (Exh. A), an email thread between Lawson and Plaintiff’s counsel, Kenneth Yaeger (“Yaeger”) in which Yaeger requests a re-noticed deposition (Exh. C), two email requests from Lawson to Yaeger asking for alternate dates for the re-noticed deposition (Exhs. D and E), a re-noticed deposition for a date unilaterally set as no date was given by Yaeger (Exh. F) and its service via email (Exh. G), another thread requesting a new deposition date and correspondence in which an August 16, 2022 date was agreed upon by both counsels (Exhs. G-J), a Second Amended Notice of Taking Deposition of Plaintiff and its corresponding email service (Exhs. K-L), and another email by Yaeger requesting a new date for the deposition (Exh. M). Lawson presents that after this last email, no new dates were provided (Decl. Lawson ¶ 18).

It appears that counsels attempted to meet and confer to establish a mutually agreeable date; however, none was agreed upon and discussions dissolved. The Court finds this acceptable as a meet and confer and addresses the Motion to Compel on its merits.

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Discussion

Application – Gerhart requests that the Court compel Plaintiff’s deposition as they have tried to accommodate Plaintiff, selected a mutually agreeable date, and Plaintiff did not appear. Following this, Gerhart has not been able to receive another date and time for Plaintiff’s deposition.

Yaeger has submitted a declaration in which he states that he is having a breakdown of the attorney-client relationship between himself and Plaintiff.

In their Reply, Defendants highlight that Plaintiff has refused to appear for any of the three properly noticed deposition dates despite Defendants’ accommodations, including selecting a date provided by Yaeger. Defendants reiterate that they attempted to meet and confer, but have heard nothing from Plaintiff. Further, Defendants argue that because Yaeger presents that he has no cooperation from his client, an order compelling Plaintiff’s deposition is appropriate and necessary.

Here, Plaintiff did not serve an objection to any deposition notice, but failed to appear for deposition on any of the three noticed dates. As such, an order compelling Plaintiff’s deposition is appropriate.

Accordingly, the Motion to Compel Plaintiff’s Deposition is GRANTED.

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Sanctions

If a motion under [Cal. Code Civ. Proc. §2025.450(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.

Yaeger presents that Plaintiff is not cooperating. Plaintiff has not presented any justification for his failure to appear.

The Court imposes a sanction of $250.00 on Plaintiff.

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Conclusion

Defendant Dale Richard Gerhart’s Motion to Compel Deposition of Plaintiff is GRANTED. Plaintiff Juan Carlos Pacheco Baez is to appear for deposition within ten (10) days of this Court Order.