Judge: Deborah C. Servino, Case: 30-2020-01155232, Date: 2022-09-02 Tentative Ruling

Hearing on motions to compel further responses to form interrogatories, special interrogatories, request for production of documents, requests for admissions off-calendar.  Notice of withdrawal of motions filed 8/26/2022.

MOTION TO COMPEL DEPOSITION

Plaintiff Jacob Vasquez’s motion for order compelling Defendant Mary Lou Fleer, herself, to appear for deposition is granted in part and denied in part.  The motion is granted as to Defendant’s testimony about her recollection of events on the date of the accident.  The motion is denied as to the requested order that she be required to provide testimony regarding the date of diagnosis of her dementia and the severity of her dementia.

Code of Civil Procedure section 2025.450, subdivision (a) provides that when a party deponent is served with a deposition notice and, without having served a valid objection under Code of Civil Procedure section 2025.410, fails to appear for deposition the party giving notice may move for an order compelling the deponent’s attendance and testimony at deposition.  The motion must be accompanied by a declaration under Code of Civil Procedure section 2016.040 stating that the moving party contacted the deponent to inquire about the nonappearance.  (Code Civ. Proc., § 2025.450, subd. (b)(2).)

Here, Defendant’s deposition was noticed.  She did not serve an objection. (Nagle Decl., at ¶¶ 2-4.)  Rather, she did not appear based on her physician’s statement that she would not be able to accurately answer questions during deposition.  (Nagle Decl., at Exh. D.)

Plaintiff’s motion to compel originally sought to compel: (1) Defendant’s appearance at deposition and (2) her testimony regarding the date of diagnosis of her dementia and the severity of her dementia, contending she put this in issue by asserting she was incompetent to sit for deposition.  Since then, the court has addressed the issue of whether, and to what extent, Defendant has put her cognitive impairment in issue and permitted Defendant a limited written deposition of Defendant’s physician.  (8/19/2022 Minute Order.) The motion is denied as to the requested order that she be required to provide testimony regarding the date of diagnosis of her dementia and the severity of her dementia.

In his reply, Plaintiff limits his request to Defendant appearing for deposition to testify regarding her recollection of events on the date of the accident.  (Reply, generally and at pp. 2:8-10 and 10:5-8.)  On this point, Defendant’s primary opposition appears to be that Plaintiff already took Defendant’s guardian ad litem’s deposition.  (Opp., at p. 2:7-9.) But Defendant’s guardian ad litem was not at the accident and cannot testify to hers, or Defendant’s, best recollection of what happened.

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Code Civ. Proc., § 2025.010 [emphasis added].)

The witness must be competent to testify; i.e., the witness must:

— understand the duty to tell the truth; and

— have the capacity to communicate. [Ev.C. § 701(a); see detailed discussion at ¶ 8:220 ff.]

(Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2021) ¶ 8:211 [emphasis in original].)

“Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.” (Evid. Code, § 700 [emphasis added].)  Evidence Code section 701 states: 

(a) A person is disqualified to be a witness if he or she is:

(1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or

(2) Incapable of understanding the duty of a witness to tell the truth.

(b) In any proceeding held outside the presence of a jury, the court may reserve challenges to the competency of a witness until the conclusion of the direct examination of that witness.

(Evid. Code, § 701.)

A witness’s “[c]apacity to communicate, or to understand the duty of truthful testimony, is a preliminary fact to be determined exclusively by the court[.]” (People v. Anderson (2001) 25 Cal.4th 543, 573 [noting that “the burden of proof is on the party who objects to the proffered witness, and a trial court's determination will be upheld in the absence of a clear abuse of discretion”].)

Here, Defendant’s physician’s note states in relevant part that Defendant has been diagnosed with cognitive impairment and is on medications for this and “will not be able to accurately answer questions during a deposition.”  (Nagle Decl., Exh. E.)  The note does not establish that Defendant is disqualified as a witness.  Defendant has not presented any evidence that she cannot express herself or that she is incapable of understanding her duty to testify truthfully.  Accordingly, Defendant is ordered to appear at her deposition to testify about her recollection of events on the date of the accident.  Defendant’s guardian ad litem may, but is not required to, be present at the deposition. 

Plaintiff shall give notice of the ruling.