Judge: Thomas D. Long, Case: 23STCV12469, Date: 2024-09-05 Tentative Ruling

Case Number: 23STCV12469    Hearing Date: September 5, 2024    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On June 1, 2023, Plaintiff Orlando Garcia filed this action against Defendants I Bahoo LLC and AZT LLC.

On July 9, 2024, AZT served a Notice of Deposition on Plaintiff for a deposition on July 25, 2024.  (Nelson Decl. ¶ 2.)  The Notice was served on Plaintiff’s counsel via regular mail (to both the California and New York offices) and electronic service at preddy@thereddylaw.com.  (Nelson Decl., Ex. 1.)  On July 24, 2024, at approximately 8:25 p.m., a calendar clerk at Plaintiff’s counsel’s office told AZT that Plaintiff was not available for the next day’s deposition.  (Nelson Decl. ¶ 4 & Ex. 2.)

On August 1, 2024, AZT filed a motion to compel Plaintiff’s deposition.

If a party or an officer, director, managing agent, employee of a party, or person designated as the person most qualified to testify fails to appear for examination or produce documents, the demanding party may move to compel attendance, testimony, and production.  (Code Civ. Proc., § 2025.450, subd. (a).)

Plaintiff argues that the Notice of Deposition was improperly served at preddy@thereddylaw.com because AZT’s counsel did not confirm the electronic service address before serving the Notice.  (Opposition at p. 4.)  Plaintiff's counsel’s office has a designated email address, and they deem improper any electronic service not directed to that address.  (Ibid.)  However, Plaintiff’s counsel admits to receiving the emailed Notice (Rishi Decl. ¶ 1 & Ex. A), and AZT also served Plaintiff by regular mail.  Plaintiff’s counsel contends that they did not receive any Notice by mail.  (Opposition at p. 4.)  That is undermined by Plaintiff’s counsel’s calendar clerk informing AZT that “our client is not available to do this deposition as requested,” and “[t]hat being the reason we didn’t previously confirmed [sic] any date.”  (Nelson Decl., Ex. 2.)  Because AZT properly served the Notice by regular mail in addition to electronic service, the purported electronic service defects do not invalidate the service.

Plaintiff argues that AZT failed to meet and confer before filing his motion.  (Opposition at p. 5.)  AZT’s counsel’s declaration does not explain any efforts to informally resolve this matter before filing a motion.

On September 4, 2024, AZT’s counsel filed a Notice of Errata to correct a typographical error, add a new paragraph to the original declaration, and renumber subsequent paragraphs.  The addition of an eight-line paragraph to a declaration is more substantive than what is appropriate for a Notice of Errata.  However, counsel also filed a supplemental declaration containing similar information.

AZT’s counsel explains that he did not respond to the July 24, 2024 email from the calendar specialist “because our office has received multiple communications from non-attorney staff in Plaintiff’s counsel’s office,” and AZT’s counsel is concerned about facilitating their unauthorized practice of law.  (Nelson Suppl. Decl. ¶ 2.)  Counsel therefore “proceeded to file this Motion in anticipation that an attorney from Plaintiff’s office would contact me to reschedule the deposition and that we would be able to withdraw the motion.”  (Nelson Suppl. Decl. ¶ 2.)

Indeed, Plaintiff’s counsel has contacted AZT’s counsel in response to this motion.  (Nelson Suppl. Decl. ¶¶ 3-9 [communications on August 1, August 8, August 12, August 19, August 27, August 29].)  Had AZT met and conferred before filing this motion, this motion would likely have been unnecessary.  Nevertheless, Plaintiff did not timely object to the Notice of Deposition and did not appear for his July 25, 2024 deposition, causing AZT to incur costs for the court reporter.

The motion is GRANTED.  Plaintiff is ordered to appear for deposition within 30 days.

Plaintiff’s counsel is ordered to pay sanctions of $643.75 to AZT within 30 days.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

         Dated this 5th day of September 2024