Judge: Lynne M. Hobbs, Case: 19STCV01773, Date: 2023-11-08 Tentative Ruling
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Case Number: 19STCV01773 Hearing Date: November 8, 2023 Dept: 30
ALEJANDRO PALATO vs GUILLERMO BELLOSO
Motion to Compel Attendance at Deposition
TENTATIVE
Plaintiff’s motion is GRANTED in part and DENIED in part. The motion to compel the deposition of the PMK is granted, but the motion to compel the request for production of documents is denied. Defendant is ordered to appear for deposition as PMK within 20 days of this order. Plaintiff’s request for sanctions is DENIED. Moving party to give notice.
Discussion
Defendant was previously deposed in his individual capacity. On September 25, 2023, Plaintiff received Defendant’s responses to Plaintiff’s Special Interrogatories, Set Four, whereby Defendant identified himself for the first time as the Director of Safety for Belloso Transport, LLC. (Joseph Decl., ¶ 2; Ex. A.) As a result, on September 26, 2023, Plaintiff served a deposition notice on Defendant to be deposed in the capacity of Director of Safety, to take place on October 10, 2023, via Zoom. (Id., Ex. B.) On October 9, 2023, Plaintiff’s office contacted Defense counsel to confirm the deposition of Mr. Belloso, and Defense counsel indicated that Mr. Belloso would not be appearing for his October 10, 2023, deposition. (See Joseph Dcl. ¶10); Id.)
In opposition, Defendant argues that because he was already deposed, under CCP Section 2025.610(a), Plaintiff needs to demonstrate good cause to take another deposition of Defendant, which was not done. Defendant argues the exception under CCP §§ 2025.610(c)(1) does not apply.
In reply, Plaintiff argues that CCP §§ 2025.610(c)(1) permits a subsequent deposition of Defendant Belloso in the capacity of Person Most Knowledgeable. Although Defendant Belloso was previously deposed in an individual capacity, “[i]t also follows that a person most qualified may be deposed after having already been deposed as a natural person.” (D H v. L.A. Unified Sch. Dist., 2018 Cal. Super. LEXIS 106043 (citing Rutter & Weil, Cal. Practice Guide: Civ. Proc. Before Trial, Ch. 8E-3, ¶ 8:482)).
Pursuant to Code of Civil Procedure, section 2025.610: “Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.” (Code Civ. Proc., § 2025.610, subd. (a).) “Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition….” (Id., § 2025.610, subd. (b).) “This section does not preclude taking one subsequent deposition of a natural person who has previously been examined under either or both of the following circumstances: (1) The person was examined as a result of that person’s designation to testify on behalf of an organization under Section 2025.230. …” (Id., § 2025.610, subd. (c)(1).)
The Court agrees that CCP section 2025.610, subd. (c)(1) applies, and the statute makes it clear that PMK depositions are treated differently. (See Weil & Brown, California Practice Guide, Civil Procedure Before Trial §8:482 (“The limitation against taking more than one depo from a natural person does not apply where that person was previously examined as an officer, director or employee of a corporation designated to testify on its behalf [Citations] (Nor, presumably, is leave of court required to examine a person designated to testify on behalf of a corporation where that person was previously deposed as an individual.)”).)
As a result, the Court finds Defendant’s objection to the deposition notice was without merit. Plaintiff’s motion to compel Defendant’s PMK to appear for deposition is granted.
Plaintiff’s motion to compel the production of documents, however, is denied. Plaintiff did not make any showing of good cause to justify any of the documents as required by CCP § 2025.450(b)(1).
Plaintiff also seeks sanctions against Defendant. However, the Court finds that in this circumstance, sanctions would be unwarranted as it appears there was a good faith disagreement over the application of CCP section 2025.610, subd. (c)(1).