Judge: Steven A. Ellis, Case: 22STCV20630, Date: 2025-01-24 Tentative Ruling

Case Number: 22STCV20630    Hearing Date: January 24, 2025    Dept: 29

Sandoval v. La Bodega Meet and Produce Inc.
22STCV20630
Motion to Compel the Deposition of Defendant’s Person Most Qualified

Tentative

The motion is granted in part. 

The request for sanctions is denied.

Background

On June 24, 2022, Enrique Sandoval ("Plaintiff") filed suit against LA Bodega Meat and Produce, Inc. (“Defendant”) and Does 1 through 100, asserting causes of action for negligence and premises liability arising out of an alleged fall on August 22, 2020. 

On August 17, 2022, Defendant filed an answer.

This case was previously assigned to Department 31 and then Department 32.  When Department 32 was closed, the case was reassigned to Department 29 on December 9, 2024.

On December 23, 2024, Plaintiff filed this motion to compel the deposition of Defendant’s Person Most Qualified.  Defendant filed an opposition on January 10, and Plaintiff filed a reply on January 16.

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.”  (Code Civ. Proc., § 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.

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.”  (Code Civ. Proc., § 2025.450, 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., 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.”  (Code Civ. Proc., § 2023.030, subd. (a).)

Discussion

On August 16, 2024, Plaintiff served notice of taking the deposition of Defendant’s person most qualified on September 3, 2024. (Allton Decl., ¶¶ 2, 3.) Defendant served objections on August 30, 2024. (Id., ¶ 4.) The deposition did not go forward.

On November 5, 2024, Plaintiff served a new notice of taking the deposition of Defendant’s person most qualified at noon on November 15, 2024. (Id., ¶¶ 5-6 & Exh. C.) No objection was served. (Id., ¶ 7.)

Defendant did not produce its person most qualified for deposition as noticed.  (Id., ¶¶ 9-11 & Exh. E.)  The parties subsequently communicated about the nonappearance.  (Id., ¶¶ 12-16.)

Defendant explains that two depositions in this case were both scheduled for deposition at noon on November 15, 2024.  (Tercero Decl., ¶¶ 4-5 & Exhs. B-C.)  Due to a mistake, the depositions were calendared by defense counsel at noon and 2 pm that day.  (Id., ¶ 7.)  Defense counsel advised Plaintiff’s counsel of the conflict on the morning of the deposition and offered that the two depositions could be taken consecutively; Plaintiff’s counsel refused.  (Id., ¶¶ 8-9.)

The parties have since agreed to schedule the deposition of Defendant’s person most qualified on January 30, 2025.  (Id., ¶¶ 6, 10 & Exh. D.)

By this motion, Plaintiff seeks an order compelling the deposition of Defendant’s person most qualified as well an order compelling Defendant to produce the documents identified in the deposition notice.

The motion to compel the deposition is granted.  Plaintiff properly noticed the deposition, Defendant did not object, Defendant (through its person most qualified) failed to appear and testify, and Plaintiff inquired about the nonappearance.  Plaintiff need show nothing more.

The motion to compel the production of documents is denied without prejudice.  Pursuant to Code, a motion to compel the production of documents identified in a deposition notice must “set forth specific facts showing good cause justifying the production.”  (Code Civ. Proc., § 2025.450, subd. (b)(1).)  Such specific facts are not set forth in this motion.

The request for sanctions is denied.  The Court finds that Defendant and counsel acted with substantial justification.  In particular, once the error was identified, Defendant’s counsel promptly suggested a reasonable accommodation (taking the depositions consecutively) and, when Plaintiff did not agree, offered alternative deposition dates.

Conclusion

The Court GRANTS IN PART Plaintiff’s motion to compel.

The Court ORDERS Defendant LA Bodega Meat and Produce Inc. to produce its person(s) most qualified to give testimony under oath on the topics identified in Plaintiff’s deposition notice on January 30, 2025, at 10:00 am, by remote videoconference.

The Court ORDERS Plaintiff to provide the link for the deposition at least 24 hours before the deposition.

The Court DENIES WITHOUT PREJUDICE Plaintiff’s request for a court order compelling Defendant to produce the documents identified in Plaintiff’s deposition notice.

The Court DENIES Plaintiff’s request for sanctions.

Moving party is ORDERED to give notice.