Judge: Steven A. Ellis, Case: 22STCV18960, Date: 2024-05-15 Tentative Ruling

Case Number: 22STCV18960    Hearing Date: May 15, 2024    Dept: 29

Defendant’s Motion to Compel Plaintiff to Attend Deposition and Produce Documents

TENTATIVE 

Defendant’s motion to compel the deposition of Plaintiff is GRANTED.

The request for sanctions is DENIED.

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.)

CCP section¿2025.450(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).) 

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).)

CCP section¿2025.450(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(b).) 

Discussion 

On August 15, 2023, Defendant noticed Plaintiff’s deposition for September 7, 2023. (Shirinian Decl., ¶ 6.) On September 6, 2023, the day before the deposition, Plaintiff’s counsel advised that the deposition would need to be rescheduled. (Id., ¶ 7.)

On February 12, 2024, Plaintiff’s counsel was served with Defendants’ Amended Notice of Taking Plaintiff’s Deposition and for Production of Documents, set for March 8, 2024. (Shirinian Decl., ¶ 8.)  On February 23, 2024, Plaintiff’s counsel served an Objection on the grounds that the date was unilaterally set. (Id., ¶ 9.)

On February 29, 2024, defense counsel sent an email to Plaintiff’s counsel seeking Plaintiff’s available dates. Defense counsel did not receive a response. (Shirinian Decl., ¶ 10.) On March 25, 2024, Defense counsel spoke with Plaintiff’s counsel, where Plaintiff’s counsel indicated that he was not in contact with his client. (Id., ¶ 11.)

On April 1, 2024, Plaintiff’s counsel was served with Defendant’s Third Amended Notice of Taking Deposition of Plaintiff and for Production of Documents, set for April 17, 2024. (Shirinian Decl., ¶ 12; Exh. A.) On April 17, 2024, Plaintiff’s counsel appeared and confirmed his client would not be appearing, stating that his still does not have contact with her. Defense counsel met and conferred with Plaintiff’s counsel. (Id., ¶ 16.)

As Plaintiff was properly served with the third notice of deposition, did not object under CCP section 2025.410, failed to appear, and failed to produce the requested documents, the motion to compel Plaintiff to appear for deposition and produce documents is GRANTED. 

In light of the June 4 trial date, the Court orders Plaintiff to appear for deposition and produce documents on May 29, 2024.

            Sanctions

If a motion under CCP section¿2025.450(a) is granted, the court shall impose a monetary sanction 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. (CCP section¿2025.450(g)(1).)

Defendant seek sanctions against Plaintiff. However, the request for sanctions cannot be granted. Code of Civil Procedure 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought.” Defendant fails to identify who it seeks sanctions against in the notice of motion. Thus, the request for sanctions is denied for inadequate notice.

Conclusion 

The Court GRANTS the motion to compel.

The Court ORDERS Plaintiff to appear for deposition, give testimony under oath, and produce the documents requested in the deposition notice on May 29, 2024, at 10:00 am, by remote audio-video conference, through a link to be provided by Defendant’s counsel by no later than 4:30 pm on May 24, 2024.

The Court DENIES the request for sanctions.

Moving party is ordered to give notice.