Judge: Stephen P. Pfahler, Case: 20CHCV00303, Date: 2022-10-26 Tentative Ruling

Case Number: 20CHCV00303    Hearing Date: October 26, 2022    Dept: F49

Dept. F-49

Date: 10-26-22

Case # 20CHCV00303

Trial Date: 3-27-23

DEPO

MOVING PARTY: Plaintiff/Cross-Defendant, Walter Martin

RESPONDING PARTY: Defendants/Cross-Complainants, Sayra Alvarado, et al.

RELIEF REQUESTED

Motion to Compel the Deposition of Defendants/Cross-Complainant Sayra Alvarado

SUMMARY OF ACTION

On April 29, 2019, Plaintiff Walter Martin, trustee for the Gesner L. Martin living trust, entered into a month-to-month lease agreement for certain premises with Defendants Sayra Alvarado, Norma Saleido, and Jonathan Banuelos. Defendants took possession of the premises on the same date. Plaintiff alleges Defendants violated the lese by keeping more than one pet on the premises without prior written approval. Plaintiff also alleges Defendants failed to perform agreed upon maintenance. Plaintiff cancelled the lease, but Defendants continue to occupy the premises without paying rent since May 2019.

On May 15, 2020, Plaintiff filed a complaint for Breach of Lease Contract. Defendant answered the complaint on June 24, 2020, and filed a cross-complaint against Martin for Breach of Contract, Breach of Implied Warranty of Habitability, Breach of Implied Warranty of Quiet Enjoyment, Negligence, Constructive Eviction, Nuisance, Breach of Covenant of Good Faith and Fair Dealing, Retaliatory Acts, and Trespass. On August 7, 2020, Plaintiff/Cross-Defendants answered the cross-complaint.

RULING: Denied without Prejudice.

Plaintiff/Cross-Defendant Martin moves to compel the deposition of Sayra Alvarado. Martin describes the deposition as “set two,” due to the “extremely limited” deposition session during the pending special motion to strike.

Alvarado in opposition describes the motion as “flawed” and “premature,” and denies any refusal to appear without a valid objection. The opposition further argues to the lack of any notice of deposition or certificate of non-appearance.

Plaintiff represents a prior deposition session, while Alvarado responds to the motion as one for an initial deposition. To the extent Plaintiff seeks an initial session, Plaintiff submits two prior notices with a represented continued date of October 24. Nothing in the motion establishes an invalid or untimely objection. Plaintiff lacks presentation of any certificate of non-appearance prior to the tentative ruling publication cutoff. The court therefore declines to make an order compelling an initial deposition appearance based on the presented argument and exhibits.

Assuming a second deposition session is actually sought, the court addresses this standard as well. Deposition testimony time is limited to seven hours, unless the court allows additional time. (Code Civ. Proc., § 2025.290.) “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice … the party seeking discovery may move the court for an order compelling that answer…” (Code Civ. Proc., § 2025.480, subd. (a).) A motion to compel answers to a deposition must be filed within 60 days of the completion of the “deposition record,” and accompanied by a meet and confer letter. (Code Civ. Proc., § 2025.480, subds. (a-b).) A deposition record can be deemed complete upon the notice from the court reporter that the deposition transcript is complete. Any changes must be completed within 30 days, or any changes are waived. (Code Civ. Proc., § 2025.520; Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1033.)

Nothing in the motion indicates the length of time spent on the first session, if applicable. The motion also lacks any indication of the timing and/or information regarding the ability to verify the time frame. The motion only contains a meet and confer effort and unilaterally set deposition date for October 31, 2022. [Declaration of Kenneth Gaugh, unmarked exhibits F-G.] The court declines to order an open ended “second session” without further information, thereby allowing both the verification of statutory compliance and a basis for the establishment of certain parameters. (See Code Civ. Proc., § 2025.610.)

Under both circumstances, the motion also comes to the court before the noticed October 31, 2022 date. The court declines to categorically order a deposition and preclude valid objections, again, without any other showing of compliance for an order compelling a deposition. Whether it’s a first or second session, with whatever sought after document production included, the parties may voluntarily meet and confer in order to set a mutually convenient deposition date for the appearance and document production.

The motion is denied as presented. Plaintiff may proceed in compliance with deposition rules, if necessary and bring a renewed motion, again, if necessary. All requests for sanctions are denied.

Plaintiff Martin to give notice.