Judge: Steven A. Ellis, Case: 23STCV30393, Date: 2025-04-30 Tentative Ruling

Case Number: 23STCV30393    Hearing Date: April 30, 2025    Dept: 29

Cho v. Pak
23STCV30393
Defendants’ Motion to Compel the Deposition of Plaintiff

Tentative

The motion is denied without prejudice.

Background

On December 23, 2023, Mag Cho (“Plaintiff”) filed a complaint against Hyoung Pak, individually and as Trustee of Pak Revocable Family Trust; and Sook Pak, individually and as Trustee of Pak Revocable Family Trust (collectively “Defendants”); and Does 1 through 50 for general negligence and premises liability arising out of an alleged trip and fall on March 21, 2022, at or near 932 Fedora Street in Los Angeles.

On February 13, 2024, Defendants filed an answer.

On March 28, 2025, Defendants filed this motion to compel Plaintiff’s deposition.

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 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 2025.410 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).) 

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

On June 12, 2024, Defendants noticed Plaintiff’s deposition for September 17, 2024.  (Stratman Decl. ¶ 3 & Exh. A.) The deposition was taken off calendar due to a calendar conflict. (Id. ¶ 4 & Exh. B.)

On September 26, 2024, Defendants noticed Plaintiff’s deposition for October 24, 2024. (Id. ¶ 5 & Exh. C.) The deposition was continued to November 4, 2024. (Id. ¶¶ 6-7 & Exhs. D-E.) The deposition was taken off calendar at Plaintiff’s request. (Id. ¶¶ 8-9 & Exhs. F-G.) During the period from the beginning of November 2024 through the end of February 25, Defendants requested mutually available dates for the deposition, and Plaintiff failed to respond.  (Id., ¶¶ 9-12 & Exhs. G-J.) 

Defendants now bring this motion to compel.  The motion is denied without prejudice.

Defendants plainly have a right under the Civil Discovery Act to take the deposition of Plaintiff.  To obtain a court order compelling the deposition, however, Defendants must comply with the statutory requirements: Defendants must show that they noticed the deposition, that it remained on calendar, that no valid objection was served, and that Plaintiff failed to appear.  Defendants have not done so.

Conclusion

The Court DENIES WITHOUT PREJUDICE Defendants’ motion to compel the deposition of Plaintiff.

Moving party is ORDERED to give notice.