Judge: Steven A. Ellis, Case: 22STCV20297, Date: 2024-02-16 Tentative Ruling
Case Number: 22STCV20297 Hearing Date: April 15, 2024 Dept: 29
Plaintiffs’ Motion to Compel the Deposition of Defendant
Tentative
The motion to compel is granted.
Background
This case arises out of a motor vehicle accident on January 16,
2021, near the intersection of South Western Avenue and West 89th Street in Los
Angeles.
On June 21, 2022, Plaintiffs Uriel Calzada Martinez and Aracely De
Los Santos (“Plaintiffs”) filed the Complaint in this action, asserting causes
of action for motor vehicle negligence and general negligence against
Defendants Jerome Winfield (“Defendant”) and Does 1 through 50. On
April 13, 2023, Defendant filed his Answer to the Complaint.
On August 22, 2023, Plaintiffs served a notice
of Defendant’s deposition for September 20, 2023. (Weinberg Decl., ¶ 3 &
Exh. A.) Defendant served an objection on September 14, 2023. (Id., ¶ 4
& Exh. B.) Although the only ground
stated in the objection was counsel’s scheduling conflict, Defendant failed to
provide alternative dates, despite Plaintiffs’ reasonable and repeated follow
up efforts. (Id., ¶¶ 4-6 &
Exhs. B-C.)
After months of not receiving dates,
Plaintiff served a second deposition notice on March 14, 2024, setting the
deposition for March 27. (Id., ¶ 7
& Exh. D.)
On March 18, 2024, Plaintiffs filed this
motion to compel the deposition of Defendant. The hearing was advanced on
Plaintiffs’ ex parte application.
Defendant opposed the ex parte application to
advance the hearing but has not filed an opposition to the motion to compel.
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.
“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
Plaintiffs have served two notices to take
Defendant’s deposition. (Weinberg Decl.,
Exhs. A, D.) Defendant has not appeared
on either occasion. The first time,
Defendant served an objection asserting that counsel had a scheduling conflict,
but the failure to Defendant to offer alternative dates, despite Plaintiffs’
follow up efforts, indicates that this was not the reason that Defendant did not
appear. (Id., ¶¶ 4-6 & Exhs.
B-C.) The second time, Defendant’s
counsel appeared at the deposition and stated that he had lost contact with his
client. (Defendant’s Opposition to Ex
Parte Application, Exh. A.)
The motion to compel is GRANTED. Plaintiffs properly noticed Defendant’s
deposition, Defendant did not serve a valid objection, and Defendant did not
appear. (Code
Civ. Proc., § 2025.450, subd. (a).)
Plaintiffs contacted Defendant to inquire
about the nonappearance and to arrange for alternate dates. (Id., subd.
(b).) Defendant, however, did not offer any alternative dates
and did not appear at a second noticed deposition.
In their motion, Plaintiffs do not seek
sanctions.
Conclusion
The Court GRANTS
Plaintiffs’ motion to compel.
The Court ORDERS
Defendant to appear for and give testimony at his deposition on May __, 2024,
at 10 am, by remote means .
Moving party is ORDERED to give notice.