Judge: Steven A. Ellis, Case: 21STCV26440, Date: 2023-10-17 Tentative Ruling

Case Number: 21STCV26440    Hearing Date: October 17, 2023    Dept: 29

Tentative

The Court DENIES as moot Defendants’ motion to compel the deposition of Plaintiff and DENIES Defendants’ requests for sanctions.

The Court GRANTS Defendants’ motion to continue trial is GRANTED.

Background 

This case arises out of an alleged vehicle accident on October 30, 2019 in Simi Valley, California. Plaintiff Dennis Allen Kretin (“Plaintiff”) filed a complaint on July 19, 2021, asserting causes of action for motor vehicle negligence and general negligence against Clifford Thomas Shelton and Chelsey Miller (“Defendants”) and Does 1 through 100.  Defendants filed their answer on October 7, 2021.

Currently before the Court are two motions. 

First, on September 8, 2023, Defendants filed a motion to compel Plaintiff to appear for his deposition.  Plaintiff filed an opposition on October 4.  No reply was filed.

Second, on September 20, 2023, Defendants filed a motion to continue trial; trial is currently set for December 22, 2023, and, based upon what they characterize as Plaintiff’s failure to appear at his noticed deposition, Defendants seek to continue trial for approximately six months.  Plaintiffs have not opposed this motion.

Legal Standard

Motion to Compel Party 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 … 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.

“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, 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.”  (Id.,  § 2025.450, subd. (a).)  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., § 2025.450, 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

California Rules of Court, rule 3.1332, subdivision (c) states that although disfavored, the trial date may be continued for “good cause,” which includes (without limitation): (1) unavailability of trial counsel or witnesses due to “death, illness, or other excusable circumstances”; (2) the addition of a new party depriving the new party (or other parties) from conducting discovery and preparing for trial; (3) “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts”; or (4) “[a] significant, unanticipated change in the status of the case” preventing it from being ready for trial. (Id., Rule 3.1332(c).)¿ 

Other relevant considerations may include: “(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.” (Id., Rule 3.1332(d).)¿ 

Discussion 

Motion to Compel Deposition

On September 14, 2022, defendants served a Notice of Deposition setting Plaintiff’s remote deposition for September 29, 2022. (Flynn Decl., Exhibit A.) Plaintiff was not produced for deposition on that date. On October 17, 2022, defendants served an Amended Notice of Deposition setting Plaintiff’s remote deposition for November 29, 2022. (Flynn Decl., Exhibit B.) Plaintiff was not produced for deposition on that date. (Flynn Decl., Exhibit C.) On December 13, 2022, Defendants served a Second Amended Notice of Deposition setting plaintiff’s remote deposition for December 29, 2022. (Flynn Decl., Exhibit D.) Plaintiff served an objection to the Notice based on unavailability. (Flynn Decl., Exhibit E.) Plaintiff was not produced for deposition. Defense counsel sent an email to plaintiff’s counsel asking for dates upon which his client could be made available for deposition. (Flynn Decl., Exhibit F.) Defendants submit no response was received. On July 9, 2023, Defendants served a Third Amended Notice of Deposition setting plaintiff’s remote deposition for July 20, 2023. (Flynn Decl., Exhibit G.)  Plaintiff’s Counsel served an Objection based on unavailability. (Flynn Decl., Exhibit H.) Plaintiff was not produced for deposition. On July 19, 2023, Defense Counsel again sent an email to Plaintiff’s Counsel requesting dates upon which their client could be made available for deposition. (Flynn Decl., Exhibit I.)  Defendants submit no response has been received. On September 20, 2023, Defendants filed the instant motion to continue trial. 

On October 4, 2023, Plaintiff’s Counsel filed a declaration stating that the Deposition of Plaintiff was scheduled for October 6, 2023.  Plaintiff’s Counsel also stated that Defendants unilaterally noticed the deposition of Plaintiff on multiple occasions and that each objection was coupled with an invitation for Defense counsel to meet and confer for a mutually convenient date. (Smith Decl., ¶ 2.) Plaintiff’s Counsel also contends that on July 6, 2023, he gave notice to Defense counsel that he was expecting a baby near the July 20, 2023, deposition and thus would not commit to producing Plaintiff on that day. (Smith Decl., ¶ 2; Exhibit A.) Plaintiff’s counsel also contends that Defense Counsel emailed for a date for deposition on July 19, 2023, but that he was out of office from July 17, 2023- August 7, 2023, and had an out-of-office email reply that was sent to Defense Counsel. (Smith Decl., ¶ 5; Exhibit B and C.)  Eventually parties scheduled an October 6, 2023, deposition. (Smith Decl., ¶ 7.) Therefore, Defense Counsel states that the motion is moot and that he has a substantial justification for not producing Plaintiff.

Assuming that Plaintiff was deposed on October 6, 2023, and that Defendants were able to complete the deposition, it appears that Defendants’ motion is moot.

Assuming that Plaintiff was deposed on October 6, 2023, and that Defendants were able to complete the deposition, the Court denies the request for sanctions.  With regard to the pending deposition notice, the Court finds that Plaintiff’s counsel acted with substantial justification, as he provided notice to the birth of his child to Defense Counsel. 

Motion to Continue Trial

Defendants moves to continue the trial date for six months, to approximately June 2024, and requests that all discovery and motion cut-off dates be based upon the new trial date. Defendants argue good cause exists because Plaintiff has not been produced for deposition despite three attempts thus far and they require additional time to conduct discovery to adequately prepare for trial.

Plaintiff has not opposed the motion.

The Court finds there is good cause to continue trial.  Even assuming good faith by Plaintiff and his counsel, the fact is that Defendants initially noticed the deposition of Plaintiff in September 2022 but Plaintiff did not sit for his deposition until thirteen months later, in October 2023.  (And that is assuming that Plaintiff was deposed on October 6, 2023, and that Defendants were able to complete the deposition on that date.)  Defendants also need a reasonable period of time to conduct follow up discovery and work with their experts to prepare for trial.

As Plaintiff did not oppose the motion, it appears that he will not suffer any unfair prejudiced from the requested continuance.

Conclusion 

The Court DENIES as moot Defendants’ motion to compel the deposition of Plaintiff and DENIES Defendants’ requests for sanctions.

The Court GRANTS Defendants’ motion to continue trial is GRANTED. Trial is continued to mid June 2024. Final status conference and all deadlines are reset based on the new trial date. 

Defendants are ordered to give notice.