Judge: Armen Tamzarian, Case: 21STCV34102, Date: 2023-12-08 Tentative Ruling
Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.
Case Number: 21STCV34102 Hearing Date: April 15, 2024 Dept: 52
Plaintiff Perry Lazar moves to compel the deposition of Mark
Wardle, an employee of cross-defendant First American Title Company (First
American). The party who noticed a
deposition may move to compel the
deposition of a party, or its agent or employee, who fails to appear and
testify “without having served a valid objection under Section 2025.410.” (CCP § 2025.450(a).)
First American moves for a protective order prohibiting plaintiff
from deposing Wardle. A party or
deponent may move for a protective order “that justice requires to protect” him
or her “from unwarranted annoyance, embarrassment, or oppression, or undue
burden and expense.” (CCP §
2025.420(b).) Generally, “the burden is
on the party seeking the protective order to show good cause for whatever order
is sought.” (Fairmont Ins. Co. v.
Superior Court (2000) 22 Cal.4th 245, 255.)
Mark Wardle’s Deposition
Plaintiff shows grounds for an order compelling the
deposition of Mark Wardle. It is
undisputed he failed to testify at deposition.
First American responded to the notice of deposition with a letter
asserting its grounds for seeking a protective order. (Schapiro Decl., Ex. 3.) It argued that Wardle has no recollection of
the relevant events, which occurred in 1990.
(Id., p. 1.) That is not a
valid objection. First American has not
established that deposing Wardle is not reasonably calculated to lead to the
discovery of admissible evidence. Nor
has it established that justice requires an order protecting Wardle from
unwarranted annoyance, embarrassment, or oppression, or undue burden or
expense. If he recalls no relevant
information, the deposition will be short.
Plaintiff is entitled to an opportunity to orally examine him to attempt
to elicit testimony that may assist in preparing for trial. The annoyance, burden, or expense on Wardle
and First American will be minimal and appropriate under the
circumstances.
First American’s response to the notice of deposition also
states, “Mr. Wardle is prepared to execute a declaration that he has no
recollection of the preliminary report for title order 9005049-13, no
recollection of how its contents were generated, no recollection of how the
legal description contained in the preliminary report for title order
9005049-13 was generated or obtained, and that after reviewing the preliminary
report his memory cannot be refreshed.”
(Schapiro Decl., Ex. 3, p. 2.)
The record does not include any such declaration from Wardle. Even if Wardle executed such a declaration, that
would not allow plaintiff the same opportunity to discover information as an
oral deposition.
First American also argues plaintiff’s notice of deposition
was defective because it misspelled the deponent’s name as “Mark Ward.” First American’s objection establishes it
understood plaintiff sought to depose Mark Wardle. (Schapiro Decl., Ex. 3.) This error does not justify denying the
motion.
First American Title Company’s objections to the notice of
deposition of Mark Wardle are overruled.
Sanctions
In his motion, plaintiff seeks $5,011.65 in sanctions against
Mark Wardle and cross-defendant First American Title Company’s counsel. “If a motion” to compel
deposition “is granted, the court shall impose a monetary sanction … in favor
of the party who noticed the deposition and against the deponent or the party
with whom the deponent is affiliated, unless the court finds that the one subject
to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.” (CCP § 2025.450(g)(1).) First American made reasonable arguments in
support of its position in opposing the deposition of Mark Wardle. It acted with substantial justification. No sanctions are warranted.
Disposition
Plaintiff Perry Lazar’s motion to compel deposition of Mark
Wardle is granted.
Cross-defendant First American Title Company’s motion for protective
order is denied.
Cross-defendant First American Title Company is ordered to produce its
employee Mark Wardle to testify at deposition within 25 days.