Judge Steven A. Ellis, Case Number: 21STCV44157, Date: 2023-11-03 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV44157, Date: 2023-11-03 Tentative Ruling

Case Number: 21STCV44157 Hearing Date: March 26, 2024 Dept: 29

Defendant’s Motion to Compel the Deposition of Plaintiff

Tentative

The motion is granted.

Background

On December 2, 2021, Plaintiff Michelle Clyoine Sampson (“Plaintiff”) filed her complaint against Ereka Mamasig (“Defendant”) and Does 1 through 60, asserting causes of action for motor vehicle negligence and general negligence arising out an accident occurring on March 17, 2020, in Long Beach. Defendant filed an answer on October 11, 2022.

On May 10, 2023, Plaintiff appeared for her deposition. The deposition was suspended after approximately 40 minutes as Plaintiff stated that she was in severe pain and could not continue to testify. (Mosier Decl., ¶ 5 & Exh. C.) Attempts to reschedule the remainder of the deposition were not successful. (Id., ¶¶ 6-7.)

On November 3, 2023, the Court granted the motion of Plaintiff’s counsel to be relieved. Plaintiff is now representing herself.

On November 21, 2023, Defendant noticed Plaintiff’s continued deposition for January 8, 2024. (Id., ¶ 9 & Exh. G.) The notice, however, was electronically served on Plaintiff’s former counsel. (Id., Exh. G.)

On December 22, 2023, Defendant noticed Plaintiff’s continued deposition for January 31, 2024. (Id., ¶ 11 & Exh. H.) The notice was mailed to Plaintiff’s address on January 2 and also personally served on Plaintiff on January 9. (Id., Exh. H.)

Plaintiff did not appear for her deposition on January 31. (Id., ¶ 12 & Exh. I.)

On February 16, 2024, Defendant filed this motion to compel the deposition of Plaintiff. Defendant served Plaintiff by mail.

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.

Section 2025.450 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.” (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).)

Generally, a party may be deposed only once. (Code Civ. Proc., § 2025.610, subd. (a).) “[F]or good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.” (Code Civ. Proc. § 2025.610, subd. (b).)

Discussion

Plaintiff previously appeared for her deposition, but the deposition was suspended after approximately only forty minutes due to a medical condition of Plaintiff. (Mosier Decl., ¶ 5 & Exh. C.) Defendant now noticed an additional session of Plaintiff’s deposition, but Plaintiff did not appear. (Id., ¶¶ 6-7 11-12 & Exhs. H, I.)

Defendant has shown good cause for the order requested, regardless of whether Defendant’s request is viewed as seeking an order to complete Plaintiff’s first deposition or an order for leave to take a second deposition.

The only concern that the Court has is with the April 4 proposed date for deposition. That is only nine days from the hearing date, and Defendant will need to give notice of this ruling to Plaintiff through mail service. The Court will order Plaintiff to appear for her deposition on or after April 15, 2024.

Accordingly, Defendant’s motion is granted, subject to a minor modification of the date for the deposition.

Conclusion

The Court GRANTS Defendant’s motion to compel Plaintiff to appear for and testify at deposition.

The Court ORDERS Plaintiff to appear for and testify at deposition on April __, 2024, at 10 am at Lexitas/AdvancedOne, 17752 Sky Park Circle, Suite 100, Irvine, California 92614.

Moving party is ORDERED to give notice.