I faxed letter asking OC to pick a date in the first week of January for a depo his client. If he doesn't response in 5 days, I will unilaterally set depo for Jan. 3 and mail notice no later than Dec. 19. Is it sooner or better to mail it sooner the better. If OC objects, can I file an ex parte to compel deposition?
The Code section that deals with depositions and moving to compel thereunder is California Code of Civil Procedure Section 2025.450. While the Code does not require the initial step of trying to schedule a mutually agreeable date, a failure to do so may well result in no remedy from the court. You need to provide a reasonable time to respond to that initial informal step. If there is no response, you can unilaterally set the depo and timely serve notice of depo on the opposing counsel. I find it better to give as much notice as possible simply because everything you do will be weighed by the court for reasonableness. If opposing counsel objects, you need to consider the objection. If it is something that can be reasonably addressed, and you do not attempt to address it, bringing a motion to compel might make you the bad guy.
Finally, be aware that you cannot bring an ex parte motion to compel the deposition. The best you can do is bring an ex parte application to shorten time (and specially set if necessary) for a hearing date for your motion to compel. You cannot cannot make a substantive relief motion with ex parte notice unless there is an emergency and even then there are due process problems that can prevent the relief requested.
Good luck to you. You are now in that zone where your lack of experience in legal process will allow the opposing attorney to seriously hurt your case. You might consider hiring an attorney.
Good luck to you.
You need to first send out the Notice of Taking Deposition. The OC has three days prior to the noticed date to object. If after meeting and conferring you cannot resolve the objections, then you can file a motion to compel the deposition pursuant to California Code of Civil Procedure section 2025.450. Section 2025.450, subdivision (a) provides:
"(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 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 or tangible thing
described in the deposition notice."
Normally, it takes quite a bit of back and forth, and perhaps several "continued" depo dates, before a court will grant a motion to compel the deposition.
You cannot file an ex parte motion to compel the deposition. There is no emergency.
notice of depo of party is 15 days if mailed. if prod of documents is requested, that requires greater notice.
I try to give more notice, and send a cover letter asking counsel to let me know immediately if the date I selected wont work, and to get back to me with some dates that do. if they do, we renotice or agree the orig date is continued. If they wont agree and we cant come up with a convenient date, then a motion to compel may be needed. Judges hate dealing with these motions, so they will look carefully to see if one party was being reasonable and the other not. Sanctions can be awarded. When you send letters, make sure they are written as though they will be read by a judge. be civil and reasonable.
