Judge: Steven A. Ellis, Case: 21STCV18564, Date: 2023-11-30 Tentative Ruling

Case Number: 21STCV18564    Hearing Date: November 30, 2023    Dept: 29

Tentative

The motion is DENIED without prejudice.

Background

Ruben Ramirez ("Plaintiff") filed suit against Stanton Roanld Kurtz and Michelle Kurtz (“Defendants”) and DOES 1 through 25, alleging that Defendants collided with his vehicle on May 24, 2019. 

Plaintiff filed a Complaint on May 17, 2021, alleging two (2) causes of action: (1) Motor Vehicle Negligence and (2) General Negligence.

Defendants filed the Motion to Compel Deposition of Plaintiff on July 21, 2023. Plaintiff did not file any opposition.

Legal Standard

Code of Civil Procedure § 2025.450(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.”

 The motion shall “(1) set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “(2) 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.” (Code Civ. Proc. § 2025.450(b)(2).)

A court shall impose monetary sanctions in favor of the moving party if the motion to compel is granted, unless “the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450(g)(1).)

Discussion

Defendants have attempted to take Plaintiff’s deposition four times. (Capell Decl., ¶ 4 & Exh. A.) On August 23, 2022, Defendants served “Notice of Taking Deposition of Plaintiff” on Plaintiff for September 26, 2022. (Id., Exh. A.) On December 23, 2022, Defendants served “First Amended Notice of Taking Deposition of Plaintiff” on Plaintiff for January 23, 2023. (Ibid.) On April 26, 2023, Defendants served “Second Amended Notice of Taking Deposition of Plaintiff” on Plaintiff for May 30, 2023. (Ibid.) And, on June 2, 2023, Defendants served “Third Amended Notice of Taking Deposition of Plaintiff” on Plaintiff for June 28, 2023. (Ibid.) Plaintiff has not submitted to a deposition in this matter. (Id., ¶ 5.)

Defendants now move for an order compelling Plaintiff to appear for his deposition. Defendants have not, however, complied with the procedural requirements for such a motion. A motion to compel a deposition 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).)  No such declaration accompanies the motion.  Counsel’s statement that there has been “a meet and confer effort” is not sufficient.

To be clear, Defendants are entitled to take Plaintiff’s deposition under the Civil Discovery Act. But to obtain an order under section 2025.450, Defendants must comply with the procedural requirements set forth in the statute.

Therefore, the motion to compel is DENIED without prejudice.

Conclusion

The Court DENIES Defendants’ motion to compel the deposition of Plaintiff without prejudice.

Moving party is ordered to give notice.