Judge: Steven A. Ellis, Case: 23STCV05509, Date: 2024-12-03 Tentative Ruling

Case Number: 23STCV05509    Hearing Date: December 3, 2024    Dept: 29

Lacey v. Meta Housing Corporation
23STCV05509
Defendant’s Motion to Compel Cross-Defendant to Answer Questions at Deposition

Tentative

The hearing on the motion is continued.

Background

On March 13, 2023, Lacey Dodd (individually and as executor of the estate of Bonny Dodd), Natthan Dodd, and Deric Dodd (collectively “Plaintiffs”) filed a complaint against Meta Housing Corporation, Buckingham Senior Apartments, LLC, Buckingham Senior Apartments, L.P., Buckingham Place Senior Housing, L.P., and Does 1 through 100, asserting causes of action for wrongful death and negligence arising out of the death of Bonny Dodd, who was allegedly attacked by a fellow resident.

On June 15, 2023, Meta Housing Corporation (“Meta”) filed an answer to the complaint.  On the same date, Meta filed a cross-complaint against Vincent Kennedy  (“Kennedy”) and Roes 1 through 50.

Kennedy has not filed an answer or otherwise appeared.

On June 16, 2023, the Court, at the request of Plaintiffs, dismissed all causes of action in the complaint asserted against Buckingham Senior Apartments, LLC, Buckingham Senior Apartments, L.P., and Buckingham Place Senior Housing, L.P.

On October 6, 2023, Plaintiffs amended the complaint to name WSH Management, Inc. (“WSH”) as Doe 1.

On February 16, 2024, WSH filed an answer to the complaint.

According to Meta’s counsel. Kennedy pled guilty to the murder of Bonny Dodd and is serving a life sentence.  (Witzman Decl., ¶ 5.)  Meta issued and served a deposition subpoena to Kennedy; Kennedy appeared for deposition but refused to answer questions about the death of Bonny Dodd. (Id., ¶¶ 2, 6-7 & Exhs. 1, 3.)

On October 23, 2024, Meta filed this motion for an order compelling Kennedy to appear for a further deposition and answer questions.

No opposition has been filed.

Legal Standard

“If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc, § 2025.480, subd. (a).) “If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Id., subd. (i).)  

A motion to compel under Code Civ. Proc., section 2025.480, “…shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.480(b).) The 60-day deadline is mandatory. (Unzipped Apparel, LLC v. Bader (2007)156 Cal.App.4th 123, 136.)  

Discussion

Meta seeks an order compelling Cross-Defendant Kennedy to appear for deposition and answer questions. 

According to the proof of service filed with the motion, Kennedy was served with the motion by mail.  That is not proper service.  As Kennedy has not appeared in this action, personal service of the motion is required.  Although he has been named as a party, until and unless he appears, he is treated as a nonparty for purposes of service.  (See Cal. Rules of Court, rule 1.6(15) (defining a “party” as “a person appearing in an action”).)

The Court continues the hearing on this motion to give Meta the opportunity to cure this procedural defect.

Conclusion

The Court CONTINUES the hearing on Defendant’s motion for approximately 60 days.

Moving party must give notice to all parties and arrange for timely and proper service on Kennedy.