Judge: Daniel M. Crowley, Case: 21STCV21149, Date: 2023-01-25 Tentative Ruling
Case Number: 21STCV21149 Hearing Date: January 25, 2023 Dept: 28
Defendant City of Long Beach’s Motion to Compel Deposition of Plaintiff Maria Diaz
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On June 4, 2021, Plaintiffs Jose Luis Barajas (“Jose”), Maria Diaz (“Diaz”), Mayra Alejandra Barajas (“Mayra”), Maria Barajas (“Maria”) and Ivan Barajas (“Ivan”) filed this action against Defendants City of Long Beach (“City”), Jyvante West (“West”) and Meena Wright (“Wright”) for wrongful death (negligence), wrongful death (negligence per se) and negligent entrustment.
On August 23, 2021, City filed an answer.
On December 21, 2022, the City filed a Motion to Compel Plaintiff Maria Diaz's Deposition to be heard on January 25, 2023. On January 11, 2023, Diaz filed an opposition. On January 18, 2023, the City filed a reply.
Trial is currently scheduled for June 12, 2023.
PARTY’S REQUESTS
The City requests the Court compel Diaz to appear for her deposition.
Plaintiff requests the Court deny the motion and impose sanctions of $3,375.00 on SBM.
LEGAL STANDARD
Code of Civil Procedure § 2025.450 allows the Court to compel a party’s appearance and to produce documents.
“If, after service of a deposition notice, a party to the action… without having served a valid objection… fails to appear for examination, or to proceed with it, or to produce for inspection any document 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 or tangible thing described in the deposition notice.” 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 or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.”
CCP § 2025.450 provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition 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.
Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.
DISCUSSION
On March 31, 2022, the City emailed Plaintiffs request Diaz’s availability for a deposition; they did not receive a reply. On May 25, 2022, the City unilaterally noticed Diaz’s deposition for June 7, 2022. Plaintiffs indicated Diaz would not appear but served no formal objection. Plaintiffs also stated they would provide availability in the following weeks. The City requested dates again on July 11, 2022 and was informed by Plaintiff that Diaz lives in Mexico and her fragile mental state is preventing her from sitting for a deposition. The City noticed another deposition, which Plaintiffs objected to as it was unilaterally set, difficult for Diaz due to her health, and places undue burden on her as she cannot travel to her attorney’s office for the depo. The City requested a doctor’s note to excuse Diaz from the deposition but have yet to receive said note.
The City has attempted to compromise by offering to conduct Diaz’s deposition via multiple smaller depositions, of only an hour or two in length. Despite this, the City has still yet to receive any dates for Diaz’s deposition.
Diaz argues that requiring Diaz to attend a remote deposition places an undue burden on her, as she does not have access to the necessarily technology such as high-speed internet or a laptop. The Court finds this point unpersuasive. Diaz brought this suit. Does Diaz intend to testify at trial? If Diaz intends to pursue this matter, she must make herself available for deposition.
Additionally, Diaz argues that the deposition is noticed to take place outside the boundaries of CCP § 2025.250(a). These rules are intended to apply only to in-person depositions, as remote depositions do not have a location. CRC Rule 3.1010, which addresses remote depositions, has no rules regarding location or distance.
Finally, Diaz still has provided no proof of a fragile mental/physical state that would prevent her from testifying. The City has offered to even conduct smaller depositions to lessen stress.
The Court finds there is no good reason that Diaz cannot sit for a remote deposition. The Court grants the motion.
CONCLUSION
Defendant City of Long Beach’s Motion to Compel Deposition of Plaintiff Maria Diaz is GRANTED. Diaz is ordered to appear for a video deposition within 10 days of the hearing on the motion.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.