Judge: Daniel S. Murphy, Case: 21STCV45709, Date: 2022-08-19 Tentative Ruling
Case Number: 21STCV45709 Hearing Date: August 19, 2022 Dept: 32
KOSTIV & ASSOCIATES,
et al., Plaintiffs, v. PAYINK, LTD., et al., Defendants.
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Case No.: 21STCV45709 Hearing Date: August 19, 2022 [TENTATIVE]
order RE: plaintiffs’ motion to compel deposition |
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BACKGROUND
On December 15, 2021, Plaintiffs
Kostiv & Associates and Petro R. Kostiv filed this action against various
Defendants, asserting 16 causes of action stemming from an alleged conspiracy
to embezzle money from Plaintiffs. The allegations mainly revolve around the
actions of Defendant Diego Gonzalez (“Diego”), the former finance director for
Plaintiff Kostiv & Associates, who fraudulently entered into contracts with
Defendants Ezlawpay and Payink on behalf of Plaintiff, resulting in false invoices
charged to Plaintiff. Beyond Ezlawpay, Payink, and Diego, Plaintiffs also bring
this suit against Diego’s wife (allegedly the owner of Ezlawpay), two corporate
officers of Payink, and various employees who worked under Diego at Plaintiff’s
finance department.
The present motion to compel stems
from Plaintiffs’ unsuccessful attempts to obtain the deposition of Diego and
his wife, Elena Padilla (hereinafter “Defendants”).
LEGAL STANDARD
“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 … 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 … described in the deposition
notice.” (Code Civ. Proc., § 2025.450, subd. (a).)
MEET AND CONFER
A motion to compel deposition must
be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2025.450,
subd. (b)(2).) The Court finds that Plaintiffs have satisfied the meet and confer
requirement. (See Quiroga Decl. ¶¶ 4-11.)
DISCUSSION
The issue appears to stem primarily
from the parties’ inability to agree on a mutually available date for the
depositions. Defendants objected to the deposition notices on the grounds that they
were unilaterally noticed on a date which Defendants were not available. Elena
suffers from a medical issue requiring treatment and avers that her earliest
availability for a deposition is November 28, 2022. (Padilla Decl. ¶¶ 2-5.) Diego
avers that he is available October 11, 12, and 14, 2022. (Gonzalez Decl. ¶ 4.)
Defendants also aver that they currently reside in Mexico. (Padilla Decl. ¶ 6;
Gonzalez Decl. ¶ 3; see Code Civ. Proc., § 2025.250(a) [deposition of natural
person must take place (i) within 75 miles of deponent’s residence or (ii)
within the county where the action is pending and within 150 miles of deponent’s
residence].) Plaintiffs are amenable to a remote deposition and request a court
order compelling a deposition by the dates represented in Defendants’
declarations so as to ensure the depositions will take place without further
delay. (See Reply 6:5-11, 8:18-20.) The Court agrees.
Defendants also argue that “the
pleadings should be settled before Defendants are deposed so as to define and
narrow the scope of the examination.” (Opp. 9:9-10.) There are two demurrers currently
scheduled for August 24, 2022. However, Defendants cite no authority for the
proposition that discovery cannot take place before a demurrer is heard. In any
case, the demurrers will be heard before the dates that Defendants aver they are
available for deposition.
Defendants also objected to the
document requests in the deposition notices but make no attempt to substantiate
those objections in their opposition, or make any contention with regards to
the documents. The requested documents are relevant to the subject matter of
the litigation. (See Quiroga Decl., Ex. 7.)
CONCLUSION
Plaintiffs’ motion to compel deposition
is GRANTED. Defendant Diego Gonzalez is to appear for deposition by October 14,
2022, and Defendant Elena Padilla is to appear for deposition by November 28,
2022. The deposition is to take place remotely via videoconference. Defendants
are ordered to produce requested documents at their depositions. Sanctions are
denied as the parties acted with substantial justification.