Judge: Steven A. Ellis, Case: 22STCV24102, Date: 2024-01-04 Tentative Ruling

Case Number: 22STCV24102    Hearing Date: January 4, 2024    Dept: 29

Motion to Compel the Deposition of Plaintiff filed by Defendant Evolution Energy Solutions, LLC.

Tentative

The Court GRANTS Evolution’s motion to compel the deposition of Plaintiff, subject to the accommodations set forth in this ruling.

The Court DENIES Evolution’s request for monetary sanctions under the Civil Discovery Act.

Background

On July 26, 2021, Plaintiff Pamela Maxine Simuel (“Plaintiff”), filed suit against Evolution Energy Solutions, LLC, 15105 Sherman Way LLC, and DOES 1 through 10, alleging the causes of action of Premise Liability and General Negligence from a falling incident occurring on February 2, 2021. 

On September 19, 2023, Defendant Evolution Solutions, LLC (“Evolution”) served a notice of Plaintiff’s deposition, scheduled for October 23.  (Navarrete Decl., ¶ 16 & Exh. F.)  Counsel met and conferred, and Plaintiff’s counsel agreed to produce Plaintiff for deposition as noticed.  (Id., ¶ 17.)  Three days before the deposition, Plaintiff’s counsel emailed Evolution’s counsel and advised that Plaintiff was ill and would not be able to attend her deposition.  (Id., ¶ 18.)  Despite promises from Plaintiff’s counsel, counsel has not offered alternative dates for the deposition.  (Id., ¶¶ 20-21.)

On November 15, 2023, Evolution filed this motion to compel the deposition of Plaintiff.  Evolution also requests sanctions.  On November 21, Defendant 15105 Sherman Way LLC (“Sherman Way”) filed a joinder. 

On December 6, 2023, Plaintiff filed her opposition. On December 12, 2023, Evolution filed its reply.

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 … 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.”  (Id.,  § 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., § 2025.450, subd. (b).)  “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124. See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).) 

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).) 

Joinder

Sherman Way’s request for joinder is GRANTED.  As it relates to the deposition of Plaintiff, the interests of Evolution and Sherman Way are aligned, and allowing joinder will promote efficiency.

Discussion

On September 19, 2023, served a proper notice for Plaintiff’s deposition on October 23.  (Navarrete Decl., ¶ 16 & Exh. F.)  Plaintiff’s counsel confirmed that his client would attend.  (Id., ¶ 17.)  Three days before the deposition, however, Plaintiff’s counsel emailed Evolution’s counsel and advised that Plaintiff would not attend because she was ill.  (Id., ¶ 18.)  Plaintiff’s counsel has not offered alternative dates for the deposition.  (Id., ¶¶ 20-21.)  There is no indication that Plaintiff served a timely objection to the deposition notice.

In her opposition, Plaintiff presents a note from Plaintiff’s doctor statement, in rather general terms, that Plaintiff should not be required to submit to “a legal deposition that could last for 2 hours or longer” because of her “medical conditions.”  (Dordick Decl., Exh. A.)  Plaintiff states that she is willing to “submit to a deposition with reasonable accommodations.”  (Opp. at p. 4.)  Those accommodations include that the deposition be taken at the office of Plaintiff’s counsel and that no session of the deposition last more than two hours.  (Id. at p. 5.)

The Court has considered all of the evidence and argument presented by all parties.  Plaintiff failed to appear at a properly noticed deposition, without serving any valid objection in advance.  Accordingly, the Court GRANTS Evolution’s motion to compel the deposition of Plaintiff.

Plaintiff requested accommodations in her Opposition.  These accommodations appear reasonable, and Evolution does not oppose them its reply.  Accordingly, the Court grants the accommodations, as set forth below.

The Court DENIES Evolution’s request for monetary sanctions under the Civil Discovery Act.  Plaintiff failed to appear at her deposition, but counsel acted reasonably in advising Evolution three days in advance and requesting accommodations.  Under these circumstances, the Court finds that Plaintiff and her counsel acted with substantial justification, and that it would be unjust to impose sanctions upon them.

Conclusion

The Court GRANTS Evolution’s motion to compel the deposition of Plaintiff.

The Court ORDERS Plaintiff to appear for and testify at her deposition at a date and time to as agreed to by counsel, but in no event more than 30 days after the hearing on this motion, subject to the following: (1) the deposition will be taken in the office of Plaintiff’s counsel; (2) no session of the deposition will exceed two hours, except as agreed to by Plaintiff and her counsel; (3) in the event that multiple sessions of the deposition are necessary, they will be scheduled as agreed to by counsel, but in no event with more than five court days between sessions.

The Court DENIES Evolution’s request for monetary sanctions under the Civil Discovery Act.

Moving party is ORDERED to give notice.