Judge: Armen Tamzarian, Case: 22STCV05815, Date: 2023-04-20 Tentative Ruling

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Case Number: 22STCV05815    Hearing Date: April 20, 2023    Dept: 52

Plaintiff Dana Moon’s Motion to Compel Deposition of Defendant Chong H. Park

Plaintiff Dana M. Dorsett aka Dana Moon moves to compel the deposition of defendant Chong H. Park and to compel production of documents at his deposition.  One may move to compel the deposition of a party who fails to appear at deposition “without having served a valid objection under Section 2025.410.”  (CCP § 2025.450(a).) 

Deponent’s Appearance in Person

Defendant does not dispute that he did not comply with the notice of his deposition.  He instead argues plaintiff improperly demanded to conduct the deposition in person rather than remotely.  Defendant argues he has the right to testify remotely at deposition under Code of Civil Procedure section 2025.310 or California Rules of Court, rule 3.1010.  Both provisions, however, give the deposing party (or that party’s attorney) the right to be at the same physical location as the deponent. 

Defendant first relies on Code of Civil Procedure section 2025.310, subdivision (a), which provides: “At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means.  A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition.”  This subdivision permits remote attendance by the deposition officer—not by the deponent.

Code of Civil Procedure section 2025.310, subdivision (b), meanwhile, provides, “[A]ny party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent.”  This subdivision provides for the rights of parties and attorneys—not deponents.  Plaintiff and/or her attorney of record want to be physically present at the deponent’s location.  Subdivision (b) gives them the right to do so.  That they are “not required” to be physically present means that defendants’ counsel or parties other than the deponent can choose to appear remotely instead of being there in person. 

Defendant next relies on California Rules of Court, rule 3.1010.  Rule 3.1010(a) permits remote oral depositions but, like Code of Civil Procedure section 2025.310(b), rule 3.1010(a)(3) provides, “Any party or attorney of record may be physically present at the deposition at the location of the deponent.”  Rule 3.1010(b) further provides, “Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition” remotely.  The rule thus expressly prohibits a deponent from unilaterally electing to testify remotely.

Requests for Documents

Plaintiff also moves to compel defendant Chong H. Park to produce documents in response to 65 document requests in the notice of his deposition.  Plaintiff shows good cause for producing the documents.  Defendant does not justify his numerous boilerplate objections.  He did not specifically address each request.  In his opposition, defendant incorrectly contends plaintiff did not file a separate statement.  (Opp., p. 6.)  Plaintiff filed a 35-page separate statement on February 28.  

All the document requests are reasonably calculated to lead to the discovery of admissible evidence.  Any intrusion on third parties’ privacy rights is minimal.  And that “identical requests had already been served” is not a valid objection.  This is a deposition notice that requests defendant Chong H. Park to produce documents at his deposition.  Assuming plaintiff has served identical requests for production under Code of Civil Procedure section 2031.010, that would not preclude her from requesting documents in a notice of deposition.

Defendant Chong H. Park’s objections to the document requests are overruled. 

Sanctions

Plaintiff seeks $8,887.70 in sanctions against defendant Chong H. Park and his counsel.  When the court grants a motion to compel deposition, monetary sanctions for reasonable attorney fees are mandatory “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).)

Defendant Chong H. Park acted with substantial justification and sanctions would not be just under the circumstances.  Defendant initially resisted the deposition because he sought to have a guardian ad litem appointed.  This was a reasonable position because part of this complaint arises from plaintiff’s allegation that defendant Chong H. Park is developmentally disabled.  

Defendant’s argument about doing the deposition remotely was unsuccessful but not frivolous and was made in good faith.  Similarly, though defendant did not justify his objections to the document requests, some of the objections were reasonable.  Requesting 65 categories of documents was extreme.  That plaintiff filed the separate statement regarding those categories on February 28 then filed an “amended motion” on March 21 also caused some confusion over what plaintiff sought via this motion.

Finally, though plaintiff satisfied the minimum statutory requirement to meet and confer prior to filing her motion, as a matter of civility and professional courtesy, it would have been more appropriate to wait longer.  Had plaintiff continued her efforts to resolve this discovery dispute, the motion may have been unnecessary.  Instead, plaintiff swiftly filed this motion—and sought a remarkably high amount in monetary sanctions. 

Disposition