Judge: Steven A. Ellis, Case: 22CMCV00715, Date: 2024-09-13 Tentative Ruling

Case Number: 22CMCV00715    Hearing Date: September 13, 2024    Dept: 29

American Zurich Insurance Co. v. Huynh
22CMCV00715
Defendant’s Motion to Compel Deposition of Carolyn Segal

Tentative

The motion is denied without prejudice on procedural grounds.

Background

On December 19, 2022, American Zurich Insurance Company (“Plaintiff”) filed a complaint in subrogation against Doan Haidang Huynh (“Huynh”), Doan H. Dang (“Dang”), Dial Transport, Inc. (“Dial”), Panda Logistics USA, Inc. (“Panda”), and Does 1 through 50 for negligent and negligent entrustment arising out of accident with Mario Hernandez on December 23, 2020.

In July 2023, Panda and Dial each filed an answer. In December 2023, Huynh filed an answer.

On March 11, 2024, the Court, at the request of Plaintiff, dismissed all causes of action against Dang.

On March 19, 2024, this matter was related to Case No. 21STCV24720, Estanislao Hernandez, et al. v. Doan Haidang Huynh, et al., and transferred to Department 29 of the Spring Street Courthouse.

On August 19, 2024, Dial filed this motion to compel Carolyn Segal to appear for deposition.  Dial also seeks sanctions.  Plaintiff filed an opposition on September 3, along with its own request for sanctions.  Dial filed a reply on September 6.

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, subdivision (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.” 

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

On April 15, 2024, Defendant Dial served a notice of taking the deposition of Carolyn Segal, one of Plaintiff’s employees, on August 2, 2024.  (De La Cruz Decl., ¶¶ 3-4 & Exh. A.) Three days before the deposition, on July 30, Plaintiff’s counsel emailed Dial’s counsel and stated that Ms. Segal would not be produced for deposition on August 2.  (Id., ¶¶ 5-6 & Exh. B.)

Ms. Segal did not appear for deposition as noticed.  (Id., ¶¶ 7-8 & Exh. C.)

In the July 30 email, Plaintiff’s counsel stated that she was “diligently working on obtaining new dates and will provide them ASAP.”  (Id., Exh. B.)  As of the date that the motion was filed, Plaintiff’s counsel had not provided any dates to Dial.  (Id., ¶ 6.)  There is no indication in the moving papers that Dial responded to the July 30 email to discuss rescheduling the deposition, either before or after the August 2 non-appearance.  (See Park Decl., ¶¶ 10, 13.)

Dial filed this motion on August 19, seeking an order compelling Plaintiff to produce Ms. Segal for deposition. 

On August 29, 2024, Plaintiff provided alternate dates to Dial for Ms. Segal’s deposition.  (Id., ¶ 15; Reply McIntyre Decl., Exh. A.) 

Dial properly noticed the deposition of Plaintiff’s employee, and Plaintiff did not object or produce the employee for deposition as noticed.  Dial is entitled to the deposition, and Plaintiff was and is required to produce its employee for deposition under the Civil Discovery Act.

To obtain a court order for the deposition, however, Dial must comply with all statutory requirements.  That includes the mandatory requirement, set forth in Code of Civil Procedure section 2025.450, subdivision (b)(2), that the motion must be accompanied “by a meet and confer declaration under Section 2016.040 or, when the deponent fails to attend the deposition and produce documents …, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

That requirement is not satisfied here.  Instead, Dial decided to file this motion – without meeting and conferring, inquiring about the nonappearance, or making any effort to reschedule the deposition. 

Discovery is not a game.  The purpose of the Civil Discovery Act is to assist all parties in obtaining information needed to prepare for trial, not to give one party or another a tactical advantage (perceived or real) through pre-trial discovery orders or monetary sanctions.  Discovery is also designed to be self-executing, which is one of the reasons that the Legislature in many places (including in section 2025.450, subdivision (b)) imposed a meet and confer requirement (or, here, at a minimum, a duty to inquire about a deposition nonappearance).

The motion is denied without prejudice for the failure the comply with the procedural requirements of the statute.

As the motion to compel is not granted, Dial’s request for sanctions is denied.

Plaintiff’s request for sanctions is also denied.  Dial has been waiting for months to take this deposition, Plaintiff waited until the eve of the deposition to cancel it, and Plaintiff then waited an additional month to provide alternate dates.  Under all of the facts and circumstances, Dial has acted with substantial justification, and the imposition of sanctions would be unjust.

Conclusion

The Court DENIES, without prejudice, Dial’s motion to compel Plaintiff to produce its employee Carolyn Segal for deposition.

The Court DENIES both parties’ requests for sanctions.

Moving party is ORDERED to give notice.