Judge: Steven A. Ellis, Case: 21STCV25441, Date: 2024-08-02 Tentative Ruling

Case Number: 21STCV25441    Hearing Date: August 2, 2024    Dept: 29

Motion to Compel Deposition of Plaintiff Olivia Mizrahi
Motion to Compel Deposition of Plaintiff Golda Mizrahi
Motion to Compel Deposition of Plaintiff Yaron Mizrahi
Motion to Continue Trial

Tentative

The three motions to compel are denied without prejudice.

The motion to continue trial is denied without prejudice.

Background

On July 9, 2021, Plaintiffs Olivia Mizrahi, Golda Mizrahi, Yaron Mizrahi, Lian Beysson, and Shayla Beysson filed a complaint against Defendants Samuel Karchmer, Donald Karchmer (collectively, “Defendants”), and Does 1 through 50, asserting causes of action for motor vehicle negligence and general negligence arising out of an accident on July 9, 2019, at or near the intersection of Beverly Drive and South Santa Monica Boulevard.

Defendants filed their answer on April 26, 2022.

On July 1, 2024, Defendants filed these four motions: motions to compel the depositions of Olivia Mizrahi, Golda Mizrahi, Yaron Mizrahi, and a motion to continue trial.

No opposition has been filed.

Legal Standard

Motion to Compel Deposition

“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).) 

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.”  (Id., § 2023.030, subd. (a).)

Motion to Continue Trial

Code of Civil Procedure section 128, subdivision (a)(8), provides that the court has the power to amend and control its process and orders so as to make them conform to law and justice. “The power to determine when a continuance should be granted is within the discretion of the trial court.” (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) “A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances.” (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.) 

“To ensure the prompt disposition of civil cases, the dates assigned for trial are firm.  All parties and their counsel must regard the date set for trial as certain.”  (Cal. Rules of Court, rule 3.1332(a).)

“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits.”  (Cal. Rules of Court, rule 3.1332(c).)  “The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.”  (Ibid.)  Circumstances that may support a finding of good cause include: 

“(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; 

(2) The unavailability of a party because of death, illness, or other excusable circumstances; 

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; 

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; 

(5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; 

(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or 

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” 

(Cal. Rules of Court, rule 3.1332(c).) 

“In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination.”  (Cal. Rules of Court, rule 3.1332(d).)  California Rules of Court, rule 3.1332(d) sets forth a non-exhaustive list of factors that the court may consider: 

“(1) The proximity of the trial date; 

(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; 

(3) The length of the continuance requested; 

(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; 

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7) The court's calendar and the impact of granting a continuance on other pending trials;

(8) Whether trial counsel is engaged in another trial; 

(9) Whether all parties have stipulated to a continuance; 

(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and 

(11) Any other fact or circumstance relevant to the fair determination of the motion or application.” 

(Cal. Rules of Court, rule 3.1332(d).)

Discussion

Motions to Compel Depositions

On April 21, 2022, Defendants noticed the depositions of Yaron Mizrahi for August 23, 2022; Golda Mizrahi for August 25; and Olivia Mizrahi for August 31. (Farazian Decls., ¶ 3.) Objections to these depositions were served on August 18, 2022. (Id., ¶ 4.)

On February 12, 2024, Defendants noticed the depositions of Olivia and Golda Mizrahi for April 3, 2024, and Yaron Mizrahi for April 4. (Id., ¶ 8.)  Plaintiffs’ counsel advised Defendants that the deponents were not available on those dates.  (Id., ¶ 9.)

On June 7, 2024, Defendants noticed the depositions of Olivia and Golda Mizrahi for June 19, 2024, and Yaron Mizrahi for June 20. (Id., ¶ 10.) The three deponents did not object and did not appear.  (Id., ¶¶ 10, 12.)

Defendants have shown that they noticed the depositions and the three deponents did not object or appear.  But Defendants have not shown that after the nonappearance, they “contacted the deponent to inquire about the nonappearance.”  (Code Civ. Proc., 2025.450, subd. (b).)  That required in a motion to compel, and it is missing here.  Accordingly, the three motions to compel are denied without prejudice.

Motion to Continue

Defendants’ motion to continue to trial is premised upon the success of their motions to compel: Defendants argue that once their motions are granted, they will need sufficient time to take the depositions and then conduct any necessary follow-up discovery.

As set forth above, however, the motions to compel are denied without prejudice.  Accordingly, the motion to continue trial is also denied without prejudice.  On this record, and in the absence of orders granting their motions to compel, there is not a basis for the Court to find good cause for a continuance.  The case has been at issue for more than two years, and it is unclear why discovery was not completed (with the assistance of the Court if necessary) long ago.

Accordingly, Defendant’s motion to continue trial is denied without prejudice.

Conclusion

The Court DENIES WITHOUT PREJUDICE the Motions to Compel Plaintiffs Olivia Mizrahi, Golda Mizrahi, and Yaron Mizrahi to Appear for Deposition.  

The Court DENIES WITHOUT PREJUDICE Defendants’ Motion to Continue Trial.

Moving party is ORDERED to give notice.