Defendants' Motion to Compel Deposition of Plaintiff
Case No.: VCU334416 Date: August 11, 2026 Time: 8:30 A.M. Dept. 2-The Honorable Bret D. Hillman Motion: Defendants' Motion to Compel Deposition of Plaintiff Tentative Ruling: To deny the motion
Facts
In this Song Beverly Action, Defendants seeks to compel the deposition of Plaintiff. On November 25, 2025, Defendants' served a Notice of Taking Deposition of Plaintiff ("Notice"). The deposition was set for February 12, 2026. On February 10, 2026, Plaintiff objected to the Notice on the basis of unilateral notice and unavailability. Thereafter, between March 2026 and June 2026, Defendants met and conferred in attempts to obtain mutually convenient deposition dates. However, no apparent agreement could be reached, no deposition has taken place and Defendants seek to compel the deposition of Plaintiff pursuant to Code of Civil Procedure section 2025.450(a) and Code of Civil Procedure section 871.26(c). No opposition appears to have been filed.
Authority and Analysis
Code of Civil Procedure section 2025.450
Section 2025.450 states: "(a) 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."
"(b)(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance."
No motion to compel here lies where the deponent merely states they will not attend the deposition and no notice of nonappearance is placed on the record. Proper service of a notice of deposition is effective to require the attendance of parties as well as compelling production of specified documents or electronically stored information at their deposition. (Code Civ. Proc., Sec. 2025.280(a).)
Serving an objection based on unavailability or unilateral setting does not impose a stay on a notice of deposition. Although Code of Civil Procedure section 2025.410, subdivision (b), provides that any deposition taken after the timely service of a valid objection cannot be used against the objecting party if the party did not attend the deposition, such objection mentioned in section 2025.410 relates to an error or irregularity in a deposition notice that does not comply with Article 2 (commencing with Section 2025.210). (Code Civ. Proc. Sec. 2025.450(a).)
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The types of objections contemplated by Code of Civil Procedure section 2025.210 et seq., deal with procedural requirements such as when a defendant or plaintiff may serve a deposition notice (Code Civ. Proc., Sec. 2025.210), the contents required to be included in a deposition notice (Code Civ. Proc., Sec.Sec. 2025.220, 2025.230), to whom notice of the deposition must be given (CCP Sec. 2025.240), the location of the deposition (Code Civ. Proc., Sec.Sec. 2025.250, 2025.260), the number of days required to be given in advance of the deposition (Code Civ. Proc. Sec. 2025.270), and the manner of service upon party deponents (Code Civ. Proc., Sec. 2025.280).
There is no indication the objections raised by Plaintiff pertained to any irregularity or error in the deposition notice, so there was no reason to believe that service of objections alone would have prevented Defendants from moving forward with the deposition. A notice that a party is unavailable, that the deposition was unilaterally set, and various substantive objections to the categories, are not one of such grounds as provided under Article 2, Chapter 9 of the Civil Discovery Act that would prevent the deposition from moving forward and from a nonappearance being recorded.
Therefore, Defendants cannot move for an order compelling Plaintiff's attendance at deposition under section 2025.450 because Plaintiff has not "fail[ed] to appear for examination" at any time (Code Civ. Proc. Sec. 2025.450(a).)
Code of Civil Procedure section 871.26(c).
However, Defendants also cite Code of Civil Procedure section 871.26(c) as a basis to compel the deposition of Plaintiff, which states, in pertinent part: "(c) Within 120 days after the filing of the answer or other responsive pleading, all parties have the right to conduct initial depositions, each not to exceed two hours, of the following deponents: (1) The plaintiff..."
However, section 871.26 does not appear to provide an enforcement mechanism which would order compelling the deposition of Plaintiff. Rather, subsection (j) indicates: (j) Unless the party failing to comply with this section shows good cause, notwithstanding any other law and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose sanctions as follows: ... (2) A one-thousand-five-hundred-dollar ($1,500) sanction against the plaintiff's attorney or two-thousand-five-hundred-dollar ($2,500) sanction against the defense attorney respectively, paid within 15 business days for failure to comply with the provisions relating to depositions as prescribed in subdivision (c).
(3) For a plaintiff's repeated noncompliance with subdivision (b), (c), or (d), a court shall order the case dismissed without prejudice and the plaintiff's attorney to be responsible for costs awarded to the manufacturer. ... (5) Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to this subdivision to report the sanction, in writing, to the State Bar of California within 30 days of the imposition of the sanction."
As such, Defendant appears entitled to, at most $1,500 in sanctions under section 871.26, absent a showing of good cause by Plaintiff. However, the Court will, in the absence of an express section in 871.26 providing a procedure to compel the deposition of Plaintiff, require that Defendant comply with Code of Civil Procedure section 2025.450. As noted above, no compliance with section 2025.450 has been demonstrated, as no notice of non-appearance was recorded. Therefore, the Court denies the motion.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Galvan-Padilla, Jose De Jesus vs. Nissan North America, Inc.