Judge: Barbara M. Scheper, Case: 21STCV12764, Date: 2022-10-19 Tentative Ruling

Case Number: 21STCV12764    Hearing Date: October 19, 2022    Dept: 30

Dept. 30

Calendar No.

Nourani vs. Malik, et. al., Case No. 21STCV12764

Tentative Ruling re:  Plaintiff’s Motion to Compel Depositions; Request for Sanctions

Plaintiff Dr. Bobby Nourani (Plaintiff) requests an order compelling the depositions of Defendants Dr. Shaista Malik, Dr. Shalani Shah, and four managers of Defendant Regents of the University of California (Regents). The motion is granted.

Any party may obtain discovery, subject to restrictions, by taking the oral

deposition of any person, including any party to the action.  (Code Civ. Proc., § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.  (Code Civ. Proc., § 2025.280, subd. (a).)  

The motion to compel deposition “shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (b)(1).) “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.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

Plaintiff served notices of depositions for each of the witnesses on June 20, 2022. (Motion, Cohen Decl., Exs. K-M.) Plaintiff noticed the depositions of Dr. Shalani Shah and Dr. Shaista Malik for July 5 and 6, 2022, respectively. (Motion Ex. K.) Plaintiff noticed the deposition of Katherine Kilmer Papageorges for July 1, 2022, and in a separate Notice of Deposition, noticed the depositions of Molly Nunez, Julie Schneider, and Mary Ann Pack for July 8, July 11, and July 12, 2022, respectively. (Motion Ex. L, Ex. M.)

Defendants served Objections to the Notices of Deposition in late June. (Motion Exs. E-J.) In response to each Notice of Deposition, Defendants objected “on the grounds that pursuant to Code of Civil Procedure § 2025.310, the deponent elects to attend any noticed deposition via remote means,” and objected that counsel and the witness would be unavailable on the noticed date. Defendant also made identical, boilerplate objections to each of the Requests for Production. (Ibid.)

Defendants state that they do not oppose production of either the witnesses or the documents requested. However, Defendants oppose the noticed depositions insofar as Plaintiff seeks to depose the witnesses at the office of counsel for Plaintiff, located at 28720 Roadside Dr., Suite 273, Agoura Hills, CA. Defendants argue that the witnesses may elect to take their depositions remotely pursuant to Code Civ. Proc. § 2025.310; Defendants seek to have the witnesses take their depositions remotely or at a location in Orange County, where the witnesses work and reside.

Under section 2025.310, “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.” (Code Civ. Proc. § 2025.310, subd. (a).) “Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent.” (Code Civ. Proc. § 2025.310, subd. (b).) Additionally, rule 3.1010 of the Rules of Court provides that any party may take an oral deposition by remote means, and that any party may remotely appear and participate in an oral deposition.

            While Section 2025.310 and the Rules of Court allow oral depositions to be taken remotely, they do not provide a deponent the right to unilaterally elect to appear remotely. The deponent must appear at the location stated on the notice. Defendants have not shown that the location set by the Notices is improper. (See Code Civ. Proc. § 2025.250, subd. (a) [for natural persons, location of deposition must be “either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence”].) Defendants also have not moved for any protective order requesting “[t]hat the deposition be taken at a place other than that specified in the deposition notice.” (Code Civ. Proc., § 2025.420, subd. (b)(4).)

            Plaintiff has shown good cause for the depositions and production at issue. Defendants have not attempted to support any of their objections to the Requests for Production. Accordingly, the motion to compel is granted.  Defendants are ordered to produce the witnesses for deposition within thirty (30) days of today’s date at the location specified in the deposition notice.  Defendants are ordered to produce documents responsive to the request for production five (5) days prior to the deposition date for each deponent.

Monetary sanctions

If a motion to compel deposition is granted, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.” (Code Civ. Proc. § 2025.450, subd. (g)(1).)

Plaintiff requests sanctions for attorney’s fees and costs in the amount of $26,790.25, based on a rate of $950 per hour, for 22 hours to prepare this motion, 3 hours to review the opposition and prepare a reply, and 3 hours for traveling to and attending the hearing, plus costs of $190.25. (Cohen Decl. ¶¶ 22-23.)  The Court finds that sanctions are warranted but that the requested amount is excessive.  The Court orders Defendants and Defendants’ counsel to pay Plaintiff’s counsel $7,190.25 within thirty days of today’s date.