Judge: Christopher K. Lui, Case: 21STCV25029, Date: 2022-10-14 Tentative Ruling

Case Number: 21STCV25029    Hearing Date: October 14, 2022    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.  Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.  If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

Plaintiff Travelers Property Casualty Company of America’s motion to compel compliance with the notice of deposition as to Kris Zlatev, a principal or employee of Defendant Black Eagle Express, LLC is GRANTED. 

Plaintiff’s request for sanctions is DENIED for failure to comply with CCP ¶ 2023.040.

ANALYSIS

Motion For Order Compelling Depositions 

Discussion 

            Plaintiff moves compel compliance with notice of deposition as to Kris Zlatev, a principal or employee of Defendant Black Eagle Express, LLC, and requests sanctions. 

            CCP § 2025.450 provides in pertinent part:

(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[1], fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, 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, electronically stored information, or tangible thing described in the deposition notice.

(b) A motion under subdivision (a) shall comply with both of the following:

 (1) The motion 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.

 (2) 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.

. . .

(g) 

 (1) If a motion under subdivision (a) 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.
. . .

     (Civ. Proc. Code, § 2025.450(a), (b), (g) [bold emphasis added].)

            The Declaration of Joshua M. Southwick reflects that counsel for moving party attempted to meet and confer prior to filing this motion. (Southwick Decl., ¶¶ 16-18; Exh. C.)

The deposition notice does not request production of documents, so moving parties need not demonstrate good cause for production. (See Southwick Decl., Exh. B.) 

In the Opposition, Defendant indicates that Kris Zlatev is a Kentucky Resident. Although Defendant did not submit a declaration by Zlatev to this effect, the Court will accept this representation as true for purposes of this motion. CCP § 2026.010 governs out-of-state depositions of party-affiliated witnesses in pertinent part as follows: 

(a) Any party may obtain discovery by taking an oral deposition, as described in Section 2025.010, in another state of the United States, or in a territory or an insular possession subject to its jurisdiction. Except as modified in this section, the procedures for taking oral depositions in California set forth in Chapter 9 (commencing with Section 2025.010) apply to an oral deposition taken in another state of the United States, or in a territory or an insular possession subject to its jurisdiction.

(b) If a deponent is a party to the action or an officer, director, managing agent, or employee of a party, the service of the deposition notice is effective to compel that deponent to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection, copying, testing, or sampling. The deposition notice shall specify a place in the state, territory, or insular possession of the United States that is within 75 miles of the residence or a business office of a deponent.

(Civ. Proc. Code § 2026.010(a) & (b)[bold emphasis added].) 

Here, the Notice of Deposition does not specify a place of deposition, but only specifies that the deposition shall take place via videoconferencing. In this regard, pursuant to CCP § 2025.310, Zlatev has the option to attend via remote means at any place within 75 miles of his residence, and the Notice of Deposition will be construed to request that he attend his deposition within such proximity: 

(a) 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.

(b) 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.

(c) The procedures to implement this section shall be established by court order in the specific action or proceeding or by the California Rules of Court.

(d) An exercise of the authority granted by subdivision (a) or (b) does not waive any other provision of this title, including, but not limited to, provisions regarding the time, place, or manner in which a deposition shall be conducted.

(e) This section does not alter or amend who may lawfully serve as a deposition officer pursuant to this title or who otherwise may administer oaths pursuant to Sections 2093 and 2094 of this code or Section 8201 of the Government Code.

     (Civ. Proc. Code § 2025.310 [bold emphasis added].) 

            CRC Rule 3.1010. governs remote depositions. The deponent’s attendance is mandatory pursuant to 3.1010(c):

(a) Taking depositions Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:

(1) Notice is served with the notice of deposition or the subpoena;

(2) That party makes all arrangements for any other party to participate in the deposition in an equivalent manner. However, each party so appearing must pay all expenses incurred by it or properly allocated to it;

(3) Any party or attorney of record may be physically present at the deposition at the location of the deponent with written notice of such appearance served by personal delivery, email, or fax, at least five court days before the deposition, and subject to Code of Civil Procedure section 2025.420. An attorney for the deponent may be physically present with the deponent without notice.

. . .

(c) Deponent's appearance A deponent must appear as required by statute or as agreed to by the parties and deponent.

(d) Court orders On motion by any person, the court in a specific action may make such other orders as it deems appropriate.

     (Cal. Rules of Court, Rule 3.1010.) 

There is no indication that Defendant served any objection.(Southwick Decl., ¶ 20.) Defendant refused to produce the witness on the ground that the witness lived in another state—although the deposition is remote—and Defendant was refusing to produce the witness because counsel believed Plaintiff had not produced all discoverable documents in its possession. (Southwick Decl., ¶¶ 15-17; Exh. C.)

Of course, whether or not Plaintiff has produced discovery to Defendant’s discovery requests is irrelevant to whether Zlatev is required to appear for his deposition.

Zlatev is a principal/employee of Defendant and named as a material witness in this case. He also signed the shipment’s Rate Confirmation dated March 24, 2020. (Southwick Decl., ¶ 21; Exh. E.) Defense counsel has failed to provide any dates for the deposition to go forward. (Southwick Decl., ¶¶ 23, 24.)

While Defendant argues that the provisions of CCP § 2025.250 and § 2025.260 govern the taking of Zlatev’s deposition in a place more than 150 miles this county, as discussed above, CCP § 2026.010 governs the taking of out-of-state depositions within 75 miles of the deponent’s residence.

Plaintiff is entitled to an order compelling the remote deposition of Kris Zlatev. The motion to compel compliance with the notice of deposition is GRANTED.

Plaintiff’s request for sanctions is DENIED. The notice of motion fails to comply with CCP ¶ 2023.040, which requires that the notice of motion shall identify every person, party and attorney against whom the sanction is sought. 

A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.

     (Civ. Proc. Code, § 2023.040.)