Judge: Curtis A. Kin, Case: 22STCV35706, Date: 2023-05-09 Tentative Ruling

Case Number: 22STCV35706    Hearing Date: May 9, 2023    Dept: 72

MOTION TO COMPEL DEPOSITION

Date:        5/9/23 (8:30 AM)                     

Case:       Tabitha McClain et al. v. Mitsubishi Motors N. America, Inc. (22STCV35706)

TENTATIVE RULING:

Plaintiffs Tabitha McClain and Justin Crosby’s Motion to Compel Deposition with Production of Documents is GRANTED.

Plaintiffs Tabitha McClain and Justin Crosby move to compel the deposition of “Mike/Michael,” the Mitsubishi Motors North America, Inc.’s Customer Service Representative associated with Case #02629485. Plaintiffs also move to compel production of the documents requested in the deposition notice.

“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, 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.” (CCP § 2025.450(a).)

On January 6, 2023, plaintiff served a notice of deposition for defendant’s customer service representative. (Galaviz Decl. ¶¶ 2, 3 & Ex. 1.) The notices also included document requests. (Galaviz Decl. ¶ 3 & Ex. 1.) The deposition was scheduled for January 23, 2023. (Galaviz Decl. ¶ 3 & Ex. 1.) On January 23, 2023, neither the customer service representative nor defense counsel appeared. (Galaviz Decl. ¶ 5.)

On January 19, 2023, defendant had served objections to the deposition notice. As pertinent to this motion, defendant objected that the customer service representative is an out-of-state deponent. (Galaviz Decl. ¶ 4.) However, CCP § 2026.010 allows parties to depose party-affiliated witnesses, including employees of parties, who reside out of state. (See CCP § 2026.010(a) [“Any party may obtain discovery by taking an oral deposition…in another state of the United States….”].) “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.” (CCP § 2026.010(b).)

“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.” (CCP § 2026.010(b).) Here, the deposition notice states that the deposition will take place over videoconferencing software. (See Rule of Court 3.1010(a) [allowing for oral deposition by videoconference provided that notice is served].) This provides the customer service representative the opportunity to be within 75 miles from his residence or business office during the deposition. Accordingly, service of the deposition notice on defendant was effective to compel the customer service representative to attend deposition.

Plaintiffs set forth good cause for the documents sought in the deposition notice, as required by CCP § 2025.450(b)(1). (See Galaviz Decl. ¶¶ 15-17.) The documents either relate to plaintiffs, the subject vehicle, or the policies and procedures related to repair or repurchase requests. (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101, 1104-05 [evidence of willfulness in refusing to repair or repurchase the evidence existed because ‘there was evidence that Isuzu adopted internal policies that erected hidden obstacles to the ability of an unwary consumer to obtain redress under the Act’].)

Defendant argues that plaintiffs made no attempt to seek a commission under CCP § 2026.010(f). However, a commission is only issued “[o]n request.” (CCP § 2026.010(f).) A commission is not an absolute requirement to take a deposition outside of California. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, ¶ 8:640 [“Still other states require, for issuance of a deposition subpoena, that the court in which the action is pending have appointed an officer to administer oaths and take the deposition. [¶] The Discovery Act authorizes California courts, when necessary or convenient, to issue a ‘commission’ to a deposition officer in another state”].) Defendant has not indicated that Tennessee requires an out-of-state court to have appointed an officer to administer oaths and take testimony. Under CCP § 2026.010(b), the service of the deposition notice is sufficient to require the party-affiliated out-of-state deponent’s attendance at deposition.   

The motion is GRANTED. Defendant Mitsubishi Motors North America, Inc. is ordered to produce “Mike/Michael,” the Customer Service Representative associated with Case #02629485 for deposition on ___________________ at 10:00 AM (PST) by way of videoconferencing software. Defendant is ordered to produce the documents requested in numbers 1 through 7 listed in the deposition notice at the deposition. To the extent that responsive documents are privileged, defendant is ordered to serve a privilege log on plaintiff at the deposition.