Judge: Steven A. Ellis, Case: 21STCV05696, Date: 2024-07-29 Tentative Ruling
Case Number: 21STCV05696 Hearing Date: July 29, 2024 Dept: 29
Motions to Compel the Deposition of Plaintiffs filed by
Defendant Frank Rodriguez Garcia.
Tentative
The motions are denied without prejudice.
Background
On February 16, 2021, Davis Tivas and
Santos Tivas (collectively “Plaintiffs”) filed a complaint against Frank
Rodriguez Garcia (“Defendant”) for negligence arising out of an automobile
accident occurring on February 15, 2019.
On March 29, 2023, Defendant filed
his answer.
On June 26, 2024, Defendant filed these motions to compel
the deposition of Plaintiffs. Defendant 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.
Section 2025.450, subdivision (a), provides:
“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.”
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).)
Discussion
Defendant served Plaintiffs with notices of their depositions,
with both scheduled for June 18, 2024. (Holly Decls., ¶ 3 & Exhs. A.) Defendant reached out prior to the deposition
to confirm, but Plaintiff did not serve any objection and did not
appear. (Id., ¶¶ 4-6.)
Defendant now moves for an order compelling
Plaintiffs to attend their depositions. Defendant is certainly
entitled to take Plaintiffs ‘deposition under the Civil Discovery act, but to
obtain a court order compelling the depositions, Defendant must comply with all
statutory requirements. Here, Defendant has not done
so. Specifically, Defendant presents no evidence that, following the
nonappearances, he reached out to Plaintiff “to inquire about the
nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b).)
Accordingly, the motion is denied without
prejudice.
Conclusion
The Court DENIES
Defendant’s motion to compel the deposition of Plaintiffs without prejudice.
Moving party to give
notice.