Judge: Steven A. Ellis, Case: 21STCV22177, Date: 2023-08-25 Tentative Ruling

Case Number: 21STCV22177    Hearing Date: September 20, 2023    Dept: 29

TENTATIVE

The motion is DENIED without prejudice.

Background 

On June 14, 2021, Plaintiffs Lourdes Juarez Acatitla and Ruben Tapia Rincon filed a complaint against Defendants Brandon Ladd Pritzkat, Cosme Eliseo Coj, and Does 1 through 50 (“Defendant”) stemming from an automobile accident that occurred on February 7, 2020, at or near the intersection of South Mariposa Avenue and West 11^th Street in Los Angeles, California.

On February 22, 2022, Plaintiffs amended their complaint to name Steven Diethelm as Doe 1.

On April 6, 2022, Defendants Pritzkat and Diethelm filed their answer to the complaint.

Defendant Coj has not answered the complaint or otherwise appeared in this action.

Plaintiffs noticed the deposition of Defendant Coj for December 7, 2022; July 17, 2023; and then July 24, 2023.  Coj did not appear, and on July 24 Plaintiffs took a certificate of non-appearance.

On July 31, 2023, Plaintiffs moved for an order compelling Defendant Coj to appear for his deposition.  No opposition to the motion has been filed.

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(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(b).) 

Discussion 

Plaintiffs’ motion is denied.  Defendant Coj has never appeared in this action.  He was not served with a subpoena or deposition notice.  And he was not served with notice of this motion.

Plaintiffs have a right to take his deposition, of course, but first they must properly serve him with notice of the deposition (and a subpoena if he has not appeared).  And if he does not appear, and Plaintiffs move to compel, they must properly serve him with notice of the motion.  Accordingly, the motion is denied without prejudice.

Finally, the Court also notes that a motion to compel a deposition of a party must be accompanied by a declaration showing that the moving party has contacted the deponent to inquire about the nonappearance.

Conclusion 

Plaintiffs’ motion to compel the deposition of Defendant Coj is DENIED without prejudice.

Moving parties are ordered to give notice.