Judge: Steven A. Ellis, Case: 21STCV30529, Date: 2024-03-04 Tentative Ruling

Case Number: 21STCV30529    Hearing Date: March 4, 2024    Dept: 29

Motion to Compel the Deposition of Defendant filed by Plaintiff Sydney Rose Leiweke.

Tentative

The motion is granted.

Background

On August 18, 2021, Sydney Rose Leiweke (“Plaintiff”) filed a complaint against Brandon Cabot Clause, Kennth C. Clause, and Does 1 through 50 for Negligence and Negligent Entrustment arising out of an automobile accident occurring on October 5, 2019.

On March 30, 2023, Plaintiff served a notice of deposition of Defendant Brandon Cabot Clause (“Defendant”) for April 28, 2023. (Liberatore Decl., ¶ 6.) Defendant objected to the date, and the deposition was taken off calendar, but not alternative dates were provided.  (Id., ¶¶ 6-8.) On September 1, 2023, Plaintiff served a second notice of deposition of Defendant for October 5, 2023. (Id., ¶ 9.) Defendant objected again; Defendant again stated that alternative dates would be provided but did not do so.  (Id., ¶¶ 9-10.)

On November 17, 2023, Plaintiff filed a motion to compel the deposition of Defendant. Defendant filed his opposition on February 22, 2024. Plaintiff filed a reply on February 26, 2024.

While the motion was pending, Defendant appeared for deposition on January 26, 2024.  (Garcia Decl., ¶ 7.)  After less than one hour, however, Defendant unilaterally, and without any prior notice, concluded the deposition for scheduling reasons.  (Ibid.; Liberatore Reply Decl., ¶¶ 3, 6.)

The parties have discussed a further session of the deposition but have not yet agreed on a date and time.   (Garcia Decl., ¶¶ 8-19; Liberatore Reply Decl., ¶ 7.)

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).)

“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.” (Code Civ. Proc. § 2025.410(a).)

Discussion

Plaintiff has been attempting to schedule Defendant’s deposition for almost a year.  Prior to the filing of this motion, Plaintiff had asked for deposition dates, but Defendant had not provided any.  When Plaintiff (twice) noticed Defendant’s deposition, Defendant objected to the date at the last possible moment.

Finally, only after this motion was filed, Defendant appeared for his deposition.  But after giving testimony for less than one hour, Defendant left.

The deposition is not complete, and no agreement has yet been reached on a date to complete the deposition.

On these facts, the motion is not moot.  Plaintiff is entitled to take – and complete – Defendant’s deposition.  That has not yet occurred.

Defendant has not asserted a valid objection to Plaintiff’s deposition notice.  A party may not refuse repeated requests to provide available deposition dates and then complain when the other party unilaterally schedules the deposition.

The motion is granted.  No sanctions are requested.

Conclusion

The Court GRANTS Plaintiff’s motions to compel the deposition of Defendant.

The Court ORDERS Defendant to appear for and testify at his deposition, until the deposition is completed, at a date and time to be arranged by counsel within 30 days of this ruling.

Moving party is ORDERED to give notice.