Judge Jill Feeney, Case 21STCV39069 2023-02-21 Tentative Ruling

Judge: Jill Feeney, Case: 21STCV39069, Date: 2023-02-21 Tentative Ruling

Case Number: 21STCV39069 Hearing Date: February 21, 2023 Dept: 30

Department 30, Spring Street Courthouse

February 21, 2023

21STCV39069

Motion for Leave to Conduct Plaintiff’s Deposition at a More Distant Place

DECISION

The motion is denied.

Moving party to provide notice.

Background

This is an action for negligence arising from a vehicle collision which took place in December 2019. Plaintiff Jaime Diaz filed his Complaint against Defendant Liu Ming Shing on October 22, 2021.

On October 19, 2022, Plaintiff filed a Doe Amendment naming Wendy Wu as a defendant in this action.

On October 31, 2022, Defendants filed the instant motion for leave to conduct a deposition of Plaintiff more than 75 miles from Plaintiff’s home.

Summary

Moving Arguments

Defendants propose to conduct Plaintiff’s deposition in Orange County, California on the day before the IME already scheduled for March 7, 2023. Defendants’ insurance carrier has already agreed to pay for the cost of travel.

Opposition Arguments

Plaintiff argues that the deposition notice is flawed because the location of the deposition is farther than 75 miles from Plaintiff’s residence and Plaintiff does not plan to return to California. Plaintiff also argues he could have completed his deposition remotely. Plaintiff also requests sanctions.

Reply Arguments

Defendants reiterates arguments from their motion.

Legal Standard

If a deponent resides in a state other than California and is a party to an action, service of a deposition notice is effective to compel that person’s attendance at deposition within 75 miles of that person’s residence or business office. (Code Civ. Proc., section 2026.010, subd., (b).) If a party wishes to depose a party at a more distant place or in a different state, the party must file a motion to obtain a court order. (Code Civ. Proc., section 2025.260, subd. (a).) A court may condition the order on the deposing party’s payment in advance of the deponent’s reasonable travel expenses. (Code Civ. Proc., section 2025.260, subd. (c).)

In exercising discretion to grant or deny the motion, a court shall take into consideration any factor tending to show whether the interests of justice will be served by requiring the deponent’s attendance at that more distant place, including:

(1) Whether the moving party selected the forum.

(2) Whether the deponent will be present to testify at the trial of the action.

(3) The convenience of the deponent.

(4) The feasibility of conducting the deposition by written questions under Chapter 11 (commencing with Section 2028.010), or of using a discovery method other than a deposition.

(5) The number of depositions sought to be taken at a place more distant than that permitted under Section 2025.250.

(6) The expense to the parties of requiring the deposition to be taken within the distance permitted under Section 2025.250.

(7) The whereabouts of the deponent at the time for which the deposition is scheduled.

Discussion

Defendants seek leave to conduct a more distant deposition of Plaintiff. Defendants propose to conduct Plaintiff’s deposition the day before the already scheduled IME set for March 7, 2023.

Defendant submits the same declaration from his motion for leave to conduct a more distant IME. The declaration does not address the proposed deposition other than the deposition date.

Plaintiff’s counsel testifies in his declaration that he did not agree or stipulate to produce Plaintiff for an in-person deposition at a more distant place. (Hakim Decl., ¶3.) Plaintiff has declined to appear for an in-person deposition multiple times. (Id., ¶6.) Plaintiff’s counsel objected to the in-person deposition on the grounds that Plaintiff is busy and resides and works in Phoenix, Arizona. (Opp. Exh.2.)

Unlike in their previous motion to conduct a more distant IME, Defendants do not articulate any reason why Plaintiff’s deposition should be taken in California. Plaintiff has already agreed to a remote deposition. Plaintiff would be further inconvenienced if the deposition were ordered to occur in California because he would need to spend additional time in California to attend both the IME and the deposition. Defendants have not analyzed the required factors or made a showing that ordering the deposition to occur here is in the interests of justice. In essence, Defendants have simply tried to piggyback on the motion to compel an IME. That is not enough.