Judge: Steven A. Ellis, Case: 20STCV43004, Date: 2024-02-09 Tentative Ruling

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ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 20STCV43004    Hearing Date: April 15, 2024    Dept: 29

Motion to Compel the Deposition of Plaintiffs filed by Defendant Memo’s Scaffolding Norwalk, Inc.

Tentative

The motion is denied without prejudice.

Background

On November 10, 2020, Rafael H. Salgado and William Salgado (collectively “Plaintiffs”) filed their complaint against Memo’s Scaffolding Norwalk, Inc. (“Memo’s Scaffolding”), and Does 1 to 30, asserting causes of action for Strict Liability and Negligence/Negligence Per Se arising from a fall on November 19, 2019. 

Memo’s Scaffolding filed its answer on September 8, 2021.

On January 11, 2023, Plaintiffs amended their complaint to name Gordon S. Gibson, Inc., dba Gordon Gibson Construction (“Gibson”) as Doe 1. Gibson filed its answer to the complaint on May 3, 2023.

On June 9, 2023, Memo’s Scaffolding filed a cross-complaint against Gibson.  Gibson filed an answer to the cross-complaint on June 20, 2023.

On March 8, 2024, Plaintiff William Salgado filed a request for dismissal of his claims in the complaint with prejudice.

On January 19, 2024, the parties filed a stipulation continuing trial dates from March to September 2024.

On March 12, 2024, the Court granted the motion of Plaintiff’s counsel to be relieved.

As it relates to this motion, Gibson noticed the deposition of Plaintiff Rafael H. Salgado (“Plaintiff”) for October 10, 2023 and then re-noticed the deposition for November 10. (Danishwar Decl., ¶¶ 2-3 & Exhs. 1-2.)  After correspondence among counsel, Plaintiff’s counsel agreed to produce Plaintiff for deposition on November 16; when a conflict arose for Gibson’s counsel, the deposition was rescheduled for December 8. (Id., ¶¶ 4-6 & Exhs. 3-5.)  Memo’s Scaffolding noticed the deposition of Plaintiff for December 8.  (Id., ¶ 6 & Exh. 5.)

Plaintiff did not appear for his deposition on December 8.  (Id., ¶ 11 & Exh. 8.)

On January 5, 2024, Memo’s Scaffolding filed this motion to compel the deposition of Plaintiff.  Memo’s Scaffolding also seeks sanctions.

No opposition has been filed.

Legal Standard

“Any party may obtain discovery … by taking in California the oral deposition of any person, including any party to the action.”  (Code Civ. Proc., § 2025.010.)  Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served. 

“The service of a deposition notice … 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.”  (Id., § 2025.280, subd. (a).)

Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280.

“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.”  (Code Civ. Proc., 2025.450, subd. (a).)  Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied “by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Id., subd. (b).)   

When a motion to compel 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.”  (Id., § 2025.450, subd. (g)(1).)  

In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines “[m]isuses of the discovery process” to include “[f]ailing to respond to or to submit to an authorized method of discovery.”  Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  (Id., § 2023.030, subd. (a).)

Discussion

After several prior attempts, Memo’s Scaffolding noticed the deposition of Plaintiff for December 8.  (Danishwar Decl., ¶ 6 & Exh. 5.)  Plaintiff did not appear. (Id., ¶ 11 & Exh. 8.)

Plaintiff plainly has an obligation under the Civil Discovery Act to appear for his properly noticed deposition.  But to obtain a court order compelling Plaintiff to appear, Memo’s Scaffolding must comply with the mandatory statutory requirements set forth in Code of Civil Procedure section 2025.450.  That includes the requirement that the motion to compel must “be accompanied … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc. § 2025.450, subd. (b)(2).)

Memo’s Scaffolding has not submitted such a declaration with its moving papers.  Accordingly, the motion is denied without prejudice.

Conclusion

The Court DENIES the motion of Memo’s Scaffolding without prejudice.

Moving party is ORDERED to give notice.