Judge: Steven A. Ellis, Case: 21STCV30643, Date: 2024-02-26 Tentative Ruling

Case Number: 21STCV30643    Hearing Date: February 26, 2024    Dept: 29

Motion to Compel the Deposition of Plaintiff Jamonte Welch filed by Defendant Wenbin Liang.

Tentative

The motion is denied without prejudice.

Background

On August 19, 2021, Plaintiffs Theresa Henderson and Jamonte Welch filed their complaint against Wenbin Liang (“Defendant”) and Does 1 to 10 for Motor Vehicle Negligence arising out of an automobile accident occurring on November 11, 2020.

On January 13, 2023, Defendant served Notice of Deposition on Plaintiff Jamonte Welch (“Plaintiff”) for May 16, 2023. (Gonzalez Decl., ¶ 2.) After the deposition was moved to May 18, 2023, Plaintiff failed to appear. (Id., ¶ 5.)  On September 20, 2023, Defendant served Plaintiff Notice of Deposition for November 16, 2023. (Id., ¶ 6.) Plaintiff failed to appear on November 16, 2023. (Id., ¶ 7.)

On December 27 2023, Defendant filed this motion to compel the deposition of Plaintiff. No opposition has been filed.

Legal Standard

“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.

“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.”  (Id.,  § 2025.450, subd. (a).) 

Any such motion to compel must be accompanied “by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Id., § 2025.450, subd. (b).)  “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124. See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).) 

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).) 

Discussion

On January 13, 2023, Defendant served Notice of Deposition on Plaintiff for May 16, 2023. (Gonzalez Decl., ¶ 2.) After the deposition was moved to May 18, 2023, Plaintiff failed to appear. (Id., ¶ 5.)  On September 20, 2023, Defendant served Plaintiff Notice of Deposition for November 16, 2023. (Id., ¶ 6.) Plaintiff failed to appear on November 16, 2023. (Id., ¶ 7.) Defendant attached to the motion certificates of non-appearance for the May 18, 2023 and November 16, 2023 depositions. (Exh. D & G.)

No opposition has been filed.

Defendant is entitled to take Plaintiff’s deposition, and Plaintiff has failed to appear.  To obtain a court order compelling Plaintiff to attend his deposition, however, Defendant must comply with the statutory requirements for such an order.  That includes, as is relevant here, the requirement that the motion to compel must be accompanied “by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Code of Civ. Proc., § 2025.450, subd. (b).)  Defendant filed no such declaration with the motion.

Accordingly, the motion is denied without prejudice.

Conclusion

The Court DENIES without prejudice Defendant’s motion to compel Plaintiff’s deposition.

Moving party is ORDERED to give notice.