2017-00211661-CU-OR

Patricia Sewell vs. Renberto Orozco

Nature of Proceeding: Motion to Compel Deposition and Production of Documents

Filed By: Leas, Mark C.

Defendant Renberto Orozco’s motion to compel Plaintiff Patricia Sewell to appear for her deposition and produce documents is ruled upon as follows.

The motion was placed on today’s calendar after the Court granted Defendant’s ex parte application for an OST on September 18, 2018. Any opposition was to be filed by September 25, 2018. The Court considered the opposition filed on September 26, 2018. Trial is set for October 16, 2018.

Pursuant to CCP § 2025.450(a), where a deposition notice has been properly served and the party subject to the notice fails to appear or proceed with it, the party serving the notice may move for an order compelling the deponent’s attendance and testimony.

Defendant originally noticed Plaintiff’s deposition for May 10, 2018. Plaintiff’s counsel objected to the deposition on the basis that the date created a conflict. Defendant agreed to postpone the deposition. On August 15, 2018, Defendant personally served Plaintiff’s counsel with a notice of deposition setting the deposition for August 31, 2018. On August 17, 2018, Defendant’s counsel emailed Plaintiff’s counsel to confirm the date and asking for alternate dates if the date was not convenient. Defendant’s counsel requested alternate dates prior to September 3, 2018 as the MSC was on September 5, 2018. Plaintiff’s counsel did not respond. On August 27, 2018, Plaintiff served an objection to the deposition notice by mail indicating that Plaintiff’s counsel had a scheduling conflict and would not be attending the deposition. Defendant’s counsel sent Plaintiff’s counsel a letter indicating that the objection was not valid because it was not timely served and that if Plaintiff failed to attend the deposition he would make a record of her non-appearance and file a motion to compel. The night before the deposition, Plaintiff’s counsel sent an email to discuss rescheduling the deposition after the MSC. Defendant’s counsel indicated that the deposition would proceed as scheduled. Plaintiff did not appear for deposition.

In opposition Plaintiff argues that she timely objected to the August 31, 2018 based on Defendant unilaterally selecting a date on which counsel was not available. However, the objection was served by mail on August 27, 2018. CCP § 2025.410 requires objections to a deposition notice be served at least three calendar days before the deposition. If an objection is made three calendar days before the deposition, it must be personally served. CCP § 1013(a) provides, in part, that with respect to mail service, “[s]ervice is complete at the time of deposit, but any period of notice and any right or duty to do any act or make any response within any period or date certain after service of the document….shall be extended five calendar days…” (CCP § 1013(a).)

The objection therefore appears untimely.

Plaintiff is correct, however, that Defendant’s motion fails to contain a declaration “stating that the petitioner has contacted the deponent to inquire about the nonappearance” as required by CCP § 2025.450(b)(2). Indeed, the requirement not only means that Defendant was required to inquire regarding the nonappearance but also listen to such reasons and consider rescheduling the deposition rather than proceeding with a motion to compel. (Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124.) Defendant’s counsel’s declaration only details meet and confer efforts prior to the deposition. Nevertheless, the Court will not deny the motion on this basis. The Court retains the discretion to entertain discovery motions even where there has been a failure to meet and confer. This is appropriate here given that this matter involves the deposition of Plaintiff, which Defendant is clearly entitled to, and does not involve any complex issues. Moreover, the reason for the non-appearance was a potential conflict with the date which was known prior to the deposition. Further, the meet and confer efforts prior to the deposition suggest that Plaintiff was not entirely cooperative in providing alternate dates for her deposition despite numerous attempts to obtain such dates. Given the rapidly approaching trial date, an order compelling Plaintiff’s attendance at his deposition is appropriate.

Plaintiff’s highlighting of accommodations Plaintiff’s counsel made with respect to

dates for Defendant’s deposition and an agreement to set deposition dates at a mutually convenient time is not relevant here. Again, Defendant accommodated a previous request to reschedule the deposition originally set for May 2018 and after noticing the August 31, 2018 date contacted Plaintiff’s counsel to see if the date worked and sought alternate dates if it did not. Plaintiff’s counsel did not respond until just prior to the deposition.

The Court, however, will not compel Plaintiff to produce the documents requested in the deposition notice. To that end, where a party moves to compel a deponent’s attendance and production of documents at the deposition, the motion “shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (CCP § 2025.450(b)(1).) Here, Defendant does not describe the document requests in any detail whatsoever, either in the moving papers, or in Defendant’s counsel’s declaration. Thus Defendant failed to establish the requisite good cause to justify an order compelling Plaintiff to produce the documents at the deposition.

As a result, the motion is granted to the extent that Plaintiff is ordered to appear for her deposition and denied to the extent that Defendant sought to compel production of documents at the deposition. Given the October 16, 2018, trial date, the deposition shall be completed no later than October 12, 2018. The parties shall meet and confer on the specific date, time and location.

Defendant’s request for monetary sanctions pursuant to CCP § 2025.450(g)(1) is denied. Here, Defendant’s failure to inquire about Plaintiff’s non-appearance after the August 31, 2018 deposition date as required by CCP § 2025.450(b)(2) and/or consider rescheduling the deposition render sanctions unjust under the circumstances. Indeed, had such efforts been undertaken, this motion may have been avoided entirely.

Plaintiff’s request for sanction is granted on the basis that Defendant failed to meet and confer with Plaintiff to inquire about the reasons for her nonappearance at the deposition prior to filing the instant motion as required by CCP § 2025.450(b)(2).

“Notwithstanding the outcome of a particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (CCP § 2023.020.) Again, while Defendant’s counsel attempted to confer with Plaintiff’s counsel before the deposition, counsel proceeded with the deposition and never contacted Plaintiff’s counsel after the deposition as specifically required by CCP § 2025.450(b)(2) prior to filing the instant motion. The Court awards Plaintiff sanctions from Defendant in the amount of $300 ($300/hr x 1 hr). Sanctions are to be paid on or before November 11, 2018. If sanctions are not paid by that date, Plaintiff may prepare a formal order granting sanctions for the Court’s signature, and the order may be enforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.