Judge: Steven A. Ellis, Case: 21STCV35166, Date: 2024-05-29 Tentative Ruling
Case Number: 21STCV35166 Hearing Date: May 29, 2024 Dept: 29
Defendants’ Motion to Compel the Deposition of Plaintiff
Tentative
The motion is denied without prejudice.
Background
On September 23, 2021, Maria Benitez (“Plaintiff”) filed a
complaint against Jessica Morales Perez, Aristeo Morales (collectively
“Defendants”), and Does 1 through 50 for negligence arising out of a motor
vehicle accident occurring on September 27, 2019. Defendants filed their answer
on March 6, 2023.
Defendants initially noticed the deposition of Plaintiff for
May 22, 2023. (Trafton Decl., ¶ 2 &
Exh. A.) Defendants then continued the
date of the deposition to September 19, 2023.
(Id., ¶ 3 & Exh. B.)
Plaintiff advised that she was not available on that date; Defendants
requested available dates in October, but Plaintiff did not respond. (Id., ¶ 4 & Exh. C.)
Defendants then noticed the deposition for December 4,
2023. (Id., ¶ 5 & Exh.
D.) Plaintiff advised that she was not available
on that date, and so Defendants noticed the deposition for January 4,
2024. (Id., ¶¶ 6-7 & Exh. E.) Plaintiff served objections, including as to
the date, and proposed February 15, 27, or 28.
(Id., ¶ 8 & Exh. F.)
Defendants then noticed the deposition for February 15, 2024. (Id., ¶ 9 & Exh. G.)
On February 9, Plaintiff asked that the deposition be moved to
April. (Id., ¶ 10 & Exh. H.) Defendants declined to continue the
deposition again. (Ibid.) Plaintiff failed to appear for her deposition
on February 15, 2024. (Id., ¶ 11
& Exh. I.)
On February 20, 2024, Defendants filed this
motion to compel the deposition of Plaintiff. Defendants also seek sanctions.
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.” (Code Civ. Proc., § 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., 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).)
Discussion
Defendants
first noticed Plaintiff’s deposition for May 22, 2023, and Defendants have been
professional and courteous in continuing the deposition on numerous occasions
at the request of Plaintiff. (Trafton
Decl., ¶¶ 2-9 & Exhs. A-G.) When
Plaintiff requested yet another continuance of the deposition date set for
February 15, 2024 (a date proposed by Plaintiff), Defendants (understandably) declined
the request and took Plaintiff’s non-appearance. (Id., ¶¶ 10-11 & Exhs. H-I.)
Defendants
are certainly entitled to take Plaintiff’s deposition, and Plaintiff has so far
been uncooperative (to use a polite term) in scheduling the deposition.
To
obtain a court order compelling Plaintiff to appear for deposition, however,
Defendants must comply with all of the mandatory requirements of the applicable
statute. When a party fails to appear
for her deposition, one of those mandatory requirements is that the party
seeking a court order must submit, with the moving papers, “a
declaration stating that the petitioner has contacted the deponent to inquire
about the nonappearance.” (Code
Civ. Proc., § 2025.450, subd. (b).)
Defendants
have not done so. Accordingly, the Court
must deny the motion to compel, without prejudice, on that procedural ground.
Conclusion
The Court
DENIES without prejudice Defendants’ motion to compel the deposition of
Plaintiff.
Moving party is ORDERED to give notice.