Judge: Steven A. Ellis, Case: 21STCV03072, Date: 2024-01-03 Tentative Ruling

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Case Number: 21STCV03072    Hearing Date: April 5, 2024    Dept: 29

Plaintiff’s Motion to Compel the Deposition of Defendant’s Person Most Knowledgeable

Tentative

The motion is denied without prejudice.

Background

On January 26, 2021, Margarita Cruz Santamaria (“Plaintiff”) filed a complaint against Los Angeles Metropolitan Transportation Authority (“Defendant”) and Does 1 through 50 arising out of injuries alleged sustained on May 6, 2020, on a 720 bus near the intersection of Wilshire Boulevard and Westwood Boulevard in Los Angeles.  On June 4, 2021, Plaintiff filed a First Amended Complaint (“FAC”), asserting a single cause of action for negligence.  Defendant filed an answer to the FAC on June 22, 2021.

On four occasions, Plaintiff has noticed the deposition of Defendant’s Person Most Qualified (PMQ) on enumerated topics.  (Rodriguez Decl., ¶¶ 4-7 & Exhs. A-D.)  Most recently, on December 7, 2023, Plaintiff served a deposition notice, setting the deposition of December 19.  (Id., ¶ 7 & Exh. D.)  Defendant served an objection on December 15.  (Id., ¶ 8 & Exh. E.)  Plaintiff took Defendant’s non-appearance on December 19.  (Id., ¶ 9 & Exh. F.) 

On February 20, 2024, Plaintiff filed this motion to compel the deposition of Defendant’s PMQ.  Plaintiff also seeks sanctions.  Defendant filed an opposition on March 22, and Plaintiff filed a reply on March 28.

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.”  (Code Civ. Proc., § 2025.280, subd. (a).)

Section 2025.230 provides: “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested.  In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” 

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).)  “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124. See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).) 

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.” (Code Civ. Proc., § 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.”  (Code Civ. Proc., § 2023.030, subd. (a).)

Discussion

Plaintiff plainly has a right to take the deposition of Defendant. 

To obtain a court order compelling such a deposition, however, Plaintiff must comply with certain statutory requirements.  One of these is that the motion 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).) 

Plaintiff has not done so.  Accordingly, the motion is denied without prejudice.

Conclusion

The Court DENIES Plaintiff’s motion to compel the deposition of Defendant’s PMQ without prejudice.

Moving party is ORDERED to give notice.