Judge Steven A. Ellis, Case Number: 22STCV24351, Date: 2025-02-24 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV24351, Date: 2025-02-24 Tentative Ruling

Case Number: 22STCV24351 Hearing Date: February 24, 2025 Dept: 29

Marquina v. Nayfeld
22STCV24351
Defendant’s Motion to Compel the Deposition of Plaintiff

Tentative

The motion is granted.

Background

On July 28, 2022, Dilcia Valdez Marquina (“Plaintiff”) filed a complaint against Margaret Nayfeld (“Defendant”) and Does 1 through 50 for negligence arising out of a vehicle accident on August 6, 2020.

On May 20, 2024, Defendant filed an answer.

On January 16, 2025, Defendant filed this motion to compel the deposition of Plaintiff.

No opposition has been filed.

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.” (Code Civ. Proc., § 2025.280, subd. (a).)

Section 2025.410 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. (Code Civ. Proc., § 2025.410, subd. (a).)

Section 2025.450 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.”

(Code Civ. Proc., § 2025.450, subd. (a).) The motion must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040, “or, when the deponent fails to attend the deposition and produce the documents … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Id., subd. (b)(2).) The motion must also “set forth specific facts showing cause” for the production of documents. (Id., subd. (b)(1).)

“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.

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

Discussion

Defendant properly noticed Plaintiff’s deposition for September 9, 2024; October 17, 2024; November 19, 2024; and January 7, 2025. (Chirinian Decl., ¶¶ 4-9.) The September 9 and November 19 dates were continued by agreement of counsel. (Id., ¶¶ 5, 8.) But as to the properly noticed depositions set for October 17 and January 7, Plaintiff did not object, Plaintiff did not give advance notice that she would not appear, and Plaintiff did not appear. (Id., ¶¶ 6, 9 & Exhs. B, C.)

Defendant need show nothing more. The motion is granted.

The Court also grants in part the request for sanctions. The Court sets sanctions in the amount of $1,744, calculated based on three hours of attorney time, multiplied by counsel’s reasonable billing rate of $175 per hours, plus $575 in court reporter fees for the non-appearance on October 17, $584 in court reporter fees for the non-appearance on January 7, and a $60 filing fee.

Conclusion

The Court GRANTS Defendant’s motion.

The Court ORDERS Plaintiff Dilcia Valdez Marquina to appear for deposition and to give testimony under oath by remote video technology on March 19, 2025 at 10 a.m.

The Court ORDERS Defendant to provide the link for the deposition at least 48 hours in advance.

The Court GRANTS IN PART Defendant’s request for sanctions.

The Court ORDERS Plaintiff Dilcia Valdez Marquina and her counsel of record, Hesam Yazdanpanah, Esq., jointly and severally, to pay monetary sanctions under the Civil Discovery Act in the amount of $1,744 to Defendant (through counsel) within 30 days of notice.

Moving party is ORDERED to give notice.