Judge: Steven A. Ellis, Case: 22STCV09370, Date: 2024-12-13 Tentative Ruling

Case Number: 22STCV09370    Hearing Date: December 13, 2024    Dept: 29

Embray v. Sooferi
22STCV09370
Plaintiff’s Motion to Compel Deposition of Defendant Sooferi

Tentative

The motion is denied without prejudice.

Defendant’s request for sanctions is denied.

Background 

On March 16, 2022, Jacquith Embray (“Plaintiff”) filed the complaint in this action, asserting one cause of action for professional negligence against Pedram Sooferi, D.D.S (as an individual and dba LA Smiles Dentistry), Sean Sooferian, D.D.S., and Does 1 through 50, based on events occurring during a visit to Defendants’ dental office on March 18, 2021.

Defendant. Sooferian filed an answer on September 7, 2023.

Defendant Sooferi and Sooferi and Sooferi, APC dba LA Smiles Dentistry (erroneously sued as Pedram Sooferi, D.D.S. dba LA Smiles Dentistry) filed their answer on September 19, 2023.

As is relevant to the matter before the Court and set for hearing on December 13, 2024, Plaintiff served a notice on October 18, 2024, to take the deposition of Defendant Sooferi, with the deposition date set for October 30.  (Jaafari Decl., ¶ 5 & Exh. 1.)  (On the same day, Plaintiff also served a notice to take the deposition of Defendant Sooferian, but the motion before the Court does not seek any relief as against Defendant Sooferian.)  Defendant Sooferi served objections to the deposition on October 24, stating that the deposition notice was untimely and that both Defendant Sooferi and counsel were not available on October 30.  (Id., ¶ 7 & Exh. 3.)  Defendant Sooferi also complained, in the objection, that Plaintiff had not appeared for deposition.  (Id., Exh. 3.)

On November 12, 2024, Plaintiff filed this motion to compel Defendant Sooferi to appear for deposition.  Plaintiff also seeks sanctions.

Defendant Sooferi filed an opposition, and his own request for sanctions, on November 27.

No reply 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.  A deposition must be “scheduled for a date at least 10 days after service of the deposition notice.”  (Code Civ. Proc., § 2025.270, subd. (a).) 

“The service of a deposition notice … is effective to require any deponent who is a party to the action … 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

Plaintiff has a right under the Civil Discovery Act to take the deposition of Defendant Sooferi.  To obtain a court order compelling Defendant Sooferi to appear for deposition, however, Plaintiff must comply with all of the statutory requirements, including submitting, with the motion, either a declaration that shows an adequate effort to meet and confer or, at the very least,  “a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Code Civ. Proc., § 2025.450, subd. (b)(2).)

Plaintiff has not complied with this requirement.  For that reason, Plaintiff’s motion (including the request for sanctions) is denied without prejudice.

The Court need not reach, and does not reach, the other arguments presented by Defendant Sooferi in his opposition to the motion.  The Court, however, does note (without deciding) that: (1) the deposition notice appears to have been timely served; and (2) the asserted failure of Plaintiff to appear for deposition is not a valid objection to a deposition notice served by Plaintiff on Defendant Sooferi.

The Court also denies Defendant Sooferi’s request for sanctions.  Plaintiff is attempting to schedule the deposition of a party, and the Court finds that Plaintiff acted with substantial justification in bringing this motion.

Conclusion

The Court DENIES Plaintiff’s motion to compel the deposition of Defendant Sooferi and Plaintiff’s request for sanctions.

The Court DENIES Defendant Sooferi’s request for sanctions.

The Court ORDERS moving party to give notice.