Judge: Steven A. Ellis, Case: 22STCV04579, Date: 2024-04-15 Tentative Ruling
Case Number: 22STCV04579 Hearing Date: April 15, 2024 Dept: 29
Plaintiff’s Motion to Compel the Deposition of Defendant
Tentative
The Court will hear from counsel.
Background
On February 7, 2022, Tyler Baines
(“Plaintiff”) filed a complaint against Emilio F. Mora Guerrero (“Guerrero”), S
& G Towing & Transport, LLC (“S&G”), and Does 1 through 50,
asserting causes of action for negligence, negligence per se, and statutory
liability arising out of an automobile accident that occurred on January 28,
2022. Guerrero and S&G
(collectively, “Defendants”) filed their answer on March 30, 2022.
Plaintiff served a notice on July 13, 2023, for
the deposition of S&G, and then subsequently served a First Amended Notice,
a Second Amended Notice, and eventually a Third Amended Notice. (Dembowski Decl., ¶¶ 4-7 & Exhs. A-D.) In the Third Amended Notice, Plaintiff
identifies six topics of examination and includes six document requests. (Id., Exh. D.)
When S&G did not provide dates for a
person most qualified (PMQ) deposition, Plaintiff served a notice, and
thereafter an Amended Notice, of the deposition of S&G’s sole owner
Jefferson Hui Hui. (Id., ¶¶ 8-9
& Exhs. E-F.) In the Amended Notice,
Plaintiff includes 34 document requests.
(Id., Exh. F.)
As of the time this motion was filed, S&G
had not offered dates for either deposition.
(Id., ¶ 11.)
On March 18, 2024, Plaintiff filed this
motion to compel the “deposition” (singular) of S&G’s PMQ and Mr. Hui Hui. Plaintiff also seeks sanctions. On April 2, 2024, S&G filed its
opposition. On April 8, Plaintiff filed
a reply.
Mr. Hui Hui appeared for his deposition and
testified on April 3, 2024. (Dembowski
Reply Decl., ¶ 2 & Exh. A.)
Plaintiff states that Mr. Hui Hui “failed to produce numerous documents
requested.” (Id., ¶ 2.)
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 2025.230 provides: “If the deponent named is not a natural
person, the deposition notice shall describe with reasonable particularity the
matters on which examination is requested.
In that event, the deponent shall designate and produce at the
deposition those of its officers, directors, managing agents, employees, or
agents who are most qualified to testify on its behalf as to those matters to
the extent of any information known or reasonably available to the
deponent.”
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
Plaintiff served at least four notices for
the deposition of S&G’s PMQ and at least two notices for the deposition of
Mr. Hui Hui, its owner. (Dembowski
Decl., ¶¶ 4-9 & Exhs. A-F.) After
months of trying, Plaintiff was finally able to take the deposition (of Mr. Hui
Hui) on April 3, 2024. (Dembowski Reply
Decl., ¶ 2 & Exh. A.)
Although the deposition has now been taken,
Plaintiff contends that the motion is not moot on two grounds.
First, Plaintiff contends that Mr. Hui Hui
did not produce some or all of the requested documents. But it is not clear what documents Plaintiff
is seeking (or, stated perhaps more precisely, which document requests remain
at issue). Under the circumstances, the
Court may need to continue the matter for further briefing on this issue.
Second, Plaintiff contends that the Court
should issue sanctions to punish S&G for its wrongful delay of the
deposition. But the purpose of sanctions
under the Civil Discovery Act is not to punish; the purpose is to obtain
compliance, to bring the recalcitrant party into compliance with its discovery
obligations. (See Newland v. Super. Ct. (1995)
40 Cal.App.4th 608, 613; Ghanooni v. Super Shuttle of Los Angeles (1993)
20 Cal.App.4th 256, 262.) Where, as
here, S&G has produced its witness for deposition, and there is no longer a
motion to compel the deposition that the Court can grant, sanctions are not
authorized or appropriate – at least as to the deposition, although there could
possibly be sanctions if the motion is continued, heard, and granted as to the
document production. (See Code Civ.
Proc., § 2025.450,
subd. (g)(1).)
Conclusion
The Court
will hear from counsel.