Judge Steven A. Ellis, Case Number: 22STCV17285, Date: 2023-08-18 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV17285, Date: 2023-08-18 Tentative Ruling

Case Number: 22STCV17285 Hearing Date: August 18, 2023 Dept: 29

TENTATIVE¿

Plaintiff Thomas Clinton, Jr.’s motion to compel the deposition of Defendant Jose Baez is GRANTED. Defendant Jose Baez is ordered to appear for deposition within¿30¿days of notice of this order.

Background¿

On May 25, 2022, Plaintiff Thomas Clinton, Jr. (“Plaintiff”) filed a complaint against Defendants Jose Baez, and Affordable Moving and Storage Company, Inc. aka Affordable Moving and Storage for negligence and negligent entrustment arising from an automobile accident on June 9, 2020. The named defendants filed an answer on January 6, 2023.

On July 19, 2023, Plaintiff filed a motion to¿compel Defendant Jose Baez (“Defendant”) to attend his deposition. No opposition has been filed.

Legal Standard¿

Any party may obtain discovery by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

Code of Civil Procedure section¿2025.450 subdivision (a) provides:¿“If, after service of a deposition notice, a party to the action . . . , 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 . . . 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 . . . described in the deposition notice.”¿ (Code Civ. Proc., § 2025.450(a).)¿

Further, section¿2025.450 subdivision (b) provides:¿“A motion under subdivision (a)… shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿¿(Id., § 2025.450, subd. (b).)¿

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Discussion¿

On June 15, 2023, Plaintiff served Defendant with a notice of taking Defendant’s deposition for July 6, 2023 along with an email that requested Defendant to inform Plaintiff if the noticed deposition date does not work. (Declaration of Marvin Velastegui, ¶ 2 & Exh. A.) On July 3, 2023, Defendant served by email an objection and provided no alternate date. (Id., ¶ 3 & Exh. B.) On July 5, Plaintiff’s counsel sent two emails requesting an alternate date. (Id., ¶ 4 & Exh. C.) On July 6, Plaintiff took a Certificate of Non-Appearance of Defendant. (Id, ¶ 5 & Exh. D.) As of the date of filing of the motion, Defendant’s counsel has not provided Defendant’s availability for alternative deposition dates. (Id., ¶ 6.)

While Defendant served an objection on July 3, 2023, the objection was untimely.

Therefore, as Defendant was properly served with the deposition notice, did not serve a valid objection, failed to appear for deposition as noticed, and failed to propose an alternative date for the deposiiton, the motion to compel Defendant to appear for deposition is GRANTED.¿

Defendant is ordered to appear for deposition within 30 days of notice of this order.

Conclusion¿

Plaintiff Thomas Clinton, Jr.’s motion to compel the deposition of Defendant Jose Baez is GRANTED. Defendant Jose Baez is ordered to appear for deposition within¿30¿days of notice of this order.

Moving party is ordered to give notice.