Judge: Lisa R. Jaskol, Case: 22STCV23350, Date: 2024-10-03 Tentative Ruling
Case Number: 22STCV23350 Hearing Date: October 3, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On July 20, 2022, Plaintiff Robert Carlysle Thompson (“Plaintiff”) filed this action against Defendants Marina Pacific Associates, LP, E & S Ring Management Corp., Mark Wagner, Waters Edge at Marina Harbor, and Does 1-50 for general negligence and premises liability.
On June 16, 2023, Defendants Marina Pacific Associates, erroneously sued and served as Marina Pacific Associates, L.P., and E & S Ring Management Corp., filed an answer.
On December 19, 2023, the Court dismissed Defendant Mark Wagner without prejudice at Plaintiff’s request.
On July 18, 2024, Defendants Marina Pacific Associates and E&S Ring Management Corp. (“Defendants”) filed a motion to compel Plaintiff to appear, testify, and produce documents at a deposition. The motion was set for hearing on August 26, 2024. On August 13, 2024, Plaintiff filed an opposition. On August 14, 2024, Defendants filed a reply. The Court continued the hearing to October 3, 2024.
PARTIES’ REQUESTS
Defendants ask the Court to compel Plaintiff to appear, testify, and produce documents at a deposition.
Plaintiff asks the Court to deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 2025.450 provides in part:
“(a) 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.
“(b) A motion under subdivision (a) shall comply with both of the following:
“(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
“(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.
*
* *
(Code Civ. Proc., § 2025.450, subds. (a), (b), (g)(1).)
DISCUSSION
Defendants ask the Court to compel Plaintiff to appear and testify at a deposition and produce requested documents. Defendants have noticed Plaintiff’s deposition three times: October 11, 2023, May 14, 2024, and July 9, 2024. According to Defendants, “on each occasion the deposition was taken off calendar at Plaintiff’s counsel’s request . . . .” (Motion p. 5.) On June 25, 2024, Plaintiff’s counsel informed Defendants’ counsel that the July 9, 2024 deposition could not go forward because Plaintiff had been deemed incompetent due to Alzheimer’s. (Motion p. 5.) Since then, Plaintiff’s counsel has not responded to Defendants’ counsel’s meet and confer efforts. (Motion p. 5.)
In response, Plaintiff argues that the Court should not compel his attendance at a deposition under Code of Civil Procedure section 2025.450 because he served valid objections to Defendants’ deposition notices. Plaintiff objected to the first two depositions based on his counsel’s lack of availability. Plaintiff’s objection to the third deposition was valid, Plaintiff argues, because his doctor has found that he is incompetent due to dementia.
Plaintiff relies on Evidence Code section 701, subdivision (a), which provides that a person is disqualified to be a witness if he or she is “[i]ncapable 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 “[i]ncapable of understanding the duty of a witness to tell the truth.” (Evid. Code, § 701, subd. (a).)
To support his argument that he is incompetent to testify, Plaintiff presents a letter from Dr. Verna Porter dated May 13, 2024, stating that, given Plaintiff’s “advanced dementia, he lacks competency and capacity to understand and make medical, financial, and legal decisions.” (Exh. 6.)
Plaintiff also has submitted a declaration from Rod Newcomer, Plaintiff’s business partner who holds Plaintiff’s power of attorney. Newcomer is not a doctor or expert. His statements about Plaintiff’s “cognitive decline” do not show that Plaintiff is incompetent for purposes of Evidence Code section 701. (Exh. 7.)
Finally, Plaintiff has submitted his counsel’s declaration stating that Plaintiff’s counsel “has confirmed that overall, Plaintiff is often forgetful during conversations . . . .” (Santiago Cortes dec. ¶ 7.)
Plaintiff’s evidence does not show that he is “[i]ncapable of expressing himself . . . concerning the matter so as to be understood, either directly or through interpretation by one who can understand him” or is “[i]ncapable of understanding the duty of a witness to tell the truth.” (See Evid. Code, § 701, subd. (a).) The Court therefore finds that Plaintiff's objection based on incompetence is not valid for purposes of Code of Civil Procedure section 2025.450, subdivision (a). The Court grants Defendants' motion and orders Plaintiff to attend a deposition by November 4, 2024.
CONCLUSION
The Court GRANTS the motion of Defendants Marina Pacific Associates and E&S Ring Management Corp. to compel Plaintiff Robert Carlysle Thompson to appear, testify, and produce documents at a deposition. The Court orders Plaintiff Robert Carlysle Thompson to appear, testify, and produce documents at a deposition by November 4, 2024.
Moving parties are ordered to give notice.
Moving parties are ordered to file a proof of service of this ruling with the Court within five days.