Motion to Compel the Deposition of a Defendant Who Did Not Appear
Rodriguez v. Tyler Perry; Lions Gate Films Inc.
A defendant in this action did not appear for his own properly noticed deposition, and never served a single objection to the notice. The Discovery Act treats that as a straightforward matter: the court may order him to appear, to testify and to produce the documents demanded, and a monetary sanction follows unless the failure to appear was substantially justified.
A defendant in this action did not appear for his own properly noticed deposition, and never served a single objection to the notice. The Discovery Act treats that as a straightforward matter: the court may order him to appear, to testify and to produce the documents demanded, and a monetary sanction follows unless the failure to appear was substantially justified.
An order compelling the defendant to appear for deposition, to testify and to produce the documents described in the amended deposition notice; an order that the deposition proceed under Code of Civil Procedure sections 2025.460 and 2025.480, with no instruction not to answer except to protect privileged information; and a monetary sanction of $7,372.50 against the defendant and his counsel of record, jointly and severally.
This motion was filed in Rodriguez v. Tyler Perry. A dated timeline of the case is kept current as the docket moves. A second discovery motion, the motion to compel Lionsgate's document responses, was set for hearing the same day.
The rule this motion applies
A party deponent who fails to appear for examination without having served a valid objection under Code of Civil Procedure section 2025.410 is subject to an order compelling attendance, testimony and production. Section 2025.450, subdivision (a). Where such an order is made, a monetary sanction in favour of the noticing party is mandatory unless the deponent acted with substantial justification. Section 2025.450, subdivision (g)(1).
Two months of scheduling, and what the record does not contain
Plaintiff first requested deposition dates on 14 April 2026. Over the two months that followed, no objection to any deposition notice was ever served under section 2025.410, and the protective-order motion the defence first raised on 29 April 2026 was never filed.
On 18 May 2026 defence counsel confirmed three deposition dates in writing, without condition. Hours after plaintiff served a notice relying on that confirmation, counsel stated for the first time that the deposition would need to be conducted in Atlanta. On 27 May 2026 counsel stated that the witness would be produced in Los Angeles. On 5 June 2026 counsel wrote that Los Angeles had not been conceded as the proper location. On 9 June 2026 the witness did not appear, with no objection on file.
The objection to questions about Perry's sexuality
According to the motion, the defence demanded at a 22 April 2026 meet-and-confer call that several categories of testimony be excluded before the deposition took place. One was Perry's “sexual history, sexual preferences, and whether he is attracted to men.” In a letter dated 29 April 2026, defence counsel asked plaintiff to “confirm you will not inquire regarding Mr. Perry’s sexual orientation, his attraction (or lack of attraction) to men, [or] his sexual relationships.” At a further conference on 27 May 2026, the motion states, the defence said it would instruct Perry not to answer questions on those topics.
The motion sets out why plaintiff says the subject is relevant. The complaint alleges sexual contact, and the sexual character of that contact and Perry's intent are elements of the claims. On the 22 April call, plaintiff offered to drop all deposition questions about Perry's sexual preferences and orientation if Perry would stipulate that he has had a sexual interest in men since before he met plaintiff. According to the motion, the defence refused that offer on the call and again in its 29 April letter.
In its opposition, the defence called the topic irrelevant and asked that it be placed off-limits. The reply points out that the same opposition states Perry “is not embarrassed to answer questions about his sexual orientation.” The reply argues that a privacy concern is raised through a motion for a protective order, and that Perry did not file one.
The reasons offered do not excuse a non-appearance
An unresolved dispute about deposition topics is not authority to skip the deposition. An advance statement that a witness will not appear is the violation, not an excuse for it. A location objection that was never served under section 2025.410 preserves nothing, and in any event the defence has since agreed to appear in Los Angeles. A demand that a protective order be entered first inverts the statute, which puts the burden of moving for that order on the party seeking it.
The day-after concessions do not end the motion
The day after the non-appearance, the defence agreed that the witness would appear in person at plaintiff’s counsel’s office, committed to 9 December 2026, and stated that no prophylactic protective-order motion would be filed. Those concessions are welcome, and this motion asks the court to hold the defence to them. An email is not an order, and each earlier commitment in this record lasted until the next email.
The same letter preserved the one device that would turn the deposition into an expensive failure: an intention to raise objections to specific topics and lines of inquiry at the deposition itself, with the disputes resolved afterwards. If that means instructions not to answer on relevance and privacy grounds, that is the conduct Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014–1015 forbids, followed by serial motion practice and a second deposition session a year later.
Why it matters
A deposition is where a party answers for his conduct under oath. The Discovery Act does not let a party set preconditions on that, decline to appear, and leave the other side to litigate the consequences. The order sought here asks for nothing unusual: the date the defence offered, the location it has agreed to, and the ground rules that apply in every deposition in the state.
The filed documents
Every document below was filed with the court and is reproduced here in full, as filed.
- Notice of motion and memorandum of points and authorities
- Declaration of Jonathan J. Delshad, with exhibits
- Reply in support of the motion
- Declaration of Jonathan J. Delshad in support of the reply
Note
Public-record court filing, published to show the firm’s work. This case is in active litigation and the firm does not comment on it beyond the filed papers. General information, not legal advice. Attorney advertising.
