Judge: Jon R. Takasugi, Case: 22STCV20693, Date: 2024-01-30 Tentative Ruling

Case Number: 22STCV20693    Hearing Date: February 23, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ motion to compel Plaintiff to appear for deposition is GRANTED. Plaintiff is to appear for deposition within 20 days of entry of this order, at Defense counsel's office located at 10960 Wilshire Blvd, 18th Floor, in Los Angeles, California. Plaintiff is sanctioned, jointly and severally with counsel, $1,100, payable within 20 days.

On 6/24/2022, Plaintiff Alfredo Lopez (Plaintiff) filed suit against Martin L. Berman, Esq., Law Offices of Pflaster & Berman, and Edward J. Siegler, Esq., alleging: (1) legal malpractice; and (2) breach of fiduciary duty.

            On 2/9/2023, Defendants Martin L. Berman, Esq. and Law Offices of Pflaster & Berman moved to compel the deposition of Plaintiff Alfredo Lopez. They also seek monetary sanctions.

            The motion is unopposed.

Discussion 

            The deposition of Plaintiff Alfredo Lopez was first noticed for October 18, 2023. Although the deposition was timely noticed, Plaintiff did not appear for the deposition. (Id., ¶ 3.) No objection to the deposition notice was served. (Ibid.) Instead, Plaintiff's counsel sent an email correspondence two days before the scheduled deposition (and only after Defense counsel sent a confirming email), advising that the deposition was not going forward. (Id., Exh. B.) The reason provided was that Plaintiff was out of the country. Plaintiff's counsel requested alternative dates, which Defense counsel provided on October 16, 2023. (Ibid.)

On October 24, 2023, Defendants’ office sent another meet and confer letter, as they had not received any responses regarding the proposed dates for Plaintiff's deposition. (Id., ¶ 4, Exh. C.) In the letter, Defendants requested that Plaintiff provide dates for his deposition by the end of the day on Friday, October 27, 2023. (Ibid.) However, Plaintiff advised that he is residing in Mexico, and claimed that he is exempt from having to attend his deposition in person. (Ibid.)

Defendants’ office served another meet and confer letter on January 31, 2024. (Id., ¶ 5, Exh. D.) Plaintiff's counsel advised that he was out of town until February 5, 2024, and stated that a response would be provided by this date. (Id., ¶ 6, Exh. E.) On February 6, 2024, Defense counsel sent another email correspondence to Plaintiff's counsel, since no response had been received on February 5th as promised. (Ibid.) Plaintiff's counsel advised that he had an unexpected family issue coming up, and that a response would be provided by February 8, 2024, "at the latest." (Ibid.) However, to this day, the Defense has yet to receive a response to their meet and confer letter. (Ibid.)

CCP section 2025.310 and California Rules of Court, Rule 3.1010 (which govern remote depositions), require any party deponent to appear at a deposition in person, even if other parties and counsel appear remotely.

CCP section 2025.310 provides:

(a)   At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition.

(b)  Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent.

(Emphasis added.)

Thus, by its express language, section 2025.310(a) allows the deposition officer to be in a different location than the deponent. Subdivision (b) allows a party (who is not a deponent) and any counsel to be in a different location than the deponent. However, nowhere does the section grant a party-deponent the right to be in a different location than the deposing counsel. In fact, subdivision (b) specifically provides that the deposing attorney has the right to be "physically present at the place of the deposition with the deponent."

Furthermore, Rule of Court 3.1010(b) provides:

Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided (1) Written notice of such appearance is served by personal delivery, email or fax at least five court days before the deposition; (2) the party so appearing makes all arrangements and pays all expenses incurred for the appearance.

 (Rule of Court 3.1010(b) (Emphasis added.)

Plaintiff has filed this lawsuit in the county of Los Angeles, in California, and thus has intentionally availed himself of both Los Angeles and California as a forum. Accordingly, the Court agrees with Defendants that he should not be allowed to evade his discovery obligations simply because he resides abroad.

Plaintiff is to appear for deposition within 20 days of entry of this order, at Defense counsel's office located at 10960 Wilshire Blvd., 18th Floor, in Los Angeles, California. Plaintiff failed to serve any written objection three calendar days prior to the date of his scheduled deposition, and thereby has waived any error or irregularity. (CCP §§ 2023.010, 2025.410(a), 2025.430, 2026.010(a).)

Plaintiff is also subject to monetary sanctions. Defendants’ request for $1,110.00 in sanctions imposed jointly and severally on counsel is granted in full. Payment is due within 20 days of entry of this order.

Based on the foregoing, Defendants’ motion to compel Plaintiff to appear for deposition is granted. Plaintiff is sanctioned, jointly and severally with counsel, $1,100.00.

It is so ordered.

Dated:  February    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.