Judge: Daniel S. Murphy, Case: 21STCV45709, Date: 2022-08-19 Tentative Ruling

Case Number: 21STCV45709    Hearing Date: August 19, 2022    Dept: 32






PAYINK, LTD., et al.,



  Case No.:  21STCV45709

  Hearing Date:  August 19, 2022


     [TENTATIVE] order RE:

plaintiffs’ motion to compel deposition




            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”).




“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).)


            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.)


            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.)


            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.