Judge: Steven A. Ellis, Case: 20STCV29451, Date: 2023-08-15 Tentative Ruling

Case Number: 20STCV29451    Hearing Date: August 15, 2023    Dept: 29

TENTATIVE

Defendant’s motions to compel the deposition of Plaintiffs are DENIED without prejudice.

Background

On August 4, 2020, Plaintiffs Ray Lee Dixon and Sharon Lauren Brown-Dixon (“Plaintiffs”) filed this negligence action against Defendants Gloria B. Smith-Chillers (“Defendant”) and Does 1 through 25 arising out of an automobile accident on or about August 17, 2018, on Willow Street in Long Beach, California.

Defendant filed her answer on March 15, 2021.

The Court granted the motion of Plaintiffs’ counsel to relieved as counsel for Plaintiff on September 8, 2022.

Defendant has served multiple notices to take the depositions of both Plaintiffs.  (Matteis Decls., ¶¶ 2-7 & Exhs. A-F.)  The most recent notices, dated September 19, 2022, set the depositions on December 6, 2022.  (Id., ¶ 7 & Exh. F.)  Plaintiffs did not appear.  (Id., ¶ 8 & Exh. G.)

On December 30, 2022, Defendant filed the instant motions to compel Plaintiffs’ attendance at deposition.  Plaintiffs have filed no opposition.

Legal Standard 

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

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

CCP § 2025.450(a) provides:¿“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, or to proceed with it, or to produce for¿inspection any document ... 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 ... described in the deposition notice.” (Code Civ. Proc., § 2025.450(a).)

CCP § 2025.450(b) provides:¿“A motion under subdivision (a)… 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.”¿(Id., § 2025.450(b).) 

Discussion 

Defendant sent out multiple deposition notices for both Plaintiffs.   (Matteis Decls., ¶¶ 2-7 & Exhs. A-F.)  The final notices set both depositions for December 6, 2022.  (Id., ¶ 7 & Exh. F.)  Plaintiffs did not appear.  (Id., ¶ 8 & Exh. G.)

Defendants, of course, have the right to depose Plaintiffs, and Plaintiffs must appear at a properly noticed deposition.  The instant motions, however, must be denied for two procedural reasons.

First, Plaintiffs’ former counsel was relieved as counsel by Court order dated September 8, 2022.  The Order granting the motion to be relieved provides the following contact information for Plaintiffs: a street address on Fashion Avenue in Long Beach and a telephone number.  No email address appears on the Order.  The proofs of service on Defendant’s deposition notices indicate that Plaintiffs were served with the notices of deposition by emailing them “to the persons at the email address(es) listed.”  No email address appears on the proof of service, however.  Accordingly, Defendant has not shown that the deposition notices were properly served on Plaintiffs.

Second, when a party fails to appear at a deposition, Code of Civil Procedure requires that the motion to compel must “be accompanied … by a declaration stating that the [moving party] has contacted the deponent to inquire about the nonappearance.”  (Code Civ. Proc., § 2025.450, subd. (b)(2).)  No such declaration was filed with the moving papers.

The denial of the motion to compel is without prejudice.  Defendant may (among other things) serve new notices of deposition and, if Plaintiffs do not appear, file a new motion to compel that meets all of the requirements of the Code.

Conclusion

Defendant’s motions to compel the depositions of Plaintiffs are DENIED without prejudice.

Moving party is ordered to give notice.