Judge: Steven A. Ellis, Case: 21STCV09505, Date: 2023-09-08 Tentative Ruling

Case Number: 21STCV09505    Hearing Date: October 5, 2023    Dept: 29

TENTATIVE

Defendant’s motion is DENIED without prejudice.

Background

On March 10, 2021, Plaintiff Ramona Simpson (“Plaintiff”) filed a complaint against Defendant

Michael Cross (“Defendant”) stemming from a traffic collision that occurred on April 7, 2019.

On February 16, 2023, Defendant filed an Answer to the action.

On February 22, 2023, March 2, 2023, and March 9, 2023, Defendant’s assistant, Ty Davis

emailed Plaintiff’s counsel to arrange a date for Plaintiff’s deposition. Plaintiff’s counsel did not

reply to Davis’s meet and confer efforts. (Maxwell Decl. Ex. A.)

On April 5, 2023, Defendant served Plaintiff with a Notice of Taking Deposition and to Produce

Documents, which was scheduled for May 17, 2023. (Maxwell, Decl. Ex. B.)

On May 3, 2023, the parties orally agreed to settle the matter. (Maxwell Decl. ¶ 4.)

On May 4, 2023, Defendant’s counsel emailed Plaintiff’s counsel regarding the settlement agreement and attached the settlement release for Plaintiff’s review and signature. (Maxwell

Decl. Ex. C.) Plaintiff has never returned the signed settlement agreement and release. (Maxwell

Decl., ¶ 6.)

On June 29, 2023, Defendant served Plaintiff with a second Notice of Taking Deposition and to

Produce Documents, which was set for July 19, 2023, at 10:00 a.m. at Defendant’s counsel’s

office. (Maxwell Decl. Ex. D.) Plaintiff did not serve Defendant with an objection to the

deposition before July 19, 2023.

Defendant’s counsel and the court reporter appeared for Plaintiff’s deposition on July 19, 2023,

at 10:00 a.m. Around 10:50 a.m., neither Plaintiff or Plaintiff’s counsel appeared for the

deposition. (Maxwell Decl. Ex. E.)

Defendant has incurred costs for the court reporter in the amount of $572.30. (Maxwell Decl. Ex

F.)

On August 3, 2023, Defendant filed a motion to compel deposition of Plaintiff and requested

sanctions. No opposition was filed.

This matter came on for hearing on September 8, 2023.  Defendant had not submitted evidence showing compliance with Code of Civil Procedure section 2025.450, subdivision (b); after hearing argument, the Court continued the hearing to October 5 to give Defendant the opportunity to remedy that defect.

Defendant has not filed any further papers since September 8.

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 section 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, subd. (a).)

CCP section 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, subd. (b).)

Discussion

On June 29, 2023, Defendant served Plaintiff with a second notice of taking Plaintiff’s

deposition set for July 19, 2023 at 10:00 a.m. (Maxwell Decl., Ex. D.) However, on July 19,

2023, Plaintiff and Plaintiff’s counsel did not appear at the deposition and Defendant’s counsel

obtained a certificate of nonappearance. (Maxwell Decl. Ex. E.)

Plaintiff was properly served with the deposition notice, failed to object, and failed to appear for

deposition. Defendant has still not, however, submitted a declaration that complies with Code of

Civil Procedure section 2025.450, subdivision (b). There is no indication in the declaration

submitted in support of the motion that Defendant’s counsel “contacted the deponent [or, in this

case, deponent’s counsel] to inquire about the nonappearance.”  The Defendant has failed to file any supplemental documentation to correct these issues.

Accordingly, the motion is DENIED without prejudice.

Conclusion

Accordingly, the Defendant’s Motion to Compel the Deposition of the Plaintiff is DENIED without prejudice. 

Moving party is ordered to give notice.