Judge: Marcella O. Mclaughlin, Case: 37-2020-00045956-CU-NP-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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TENTATIVE RULINGS - February 22, 2024

02/23/2024  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2020-00045956-CU-NP-CTL MAKI VS SAN DIEGO FLOOD BUSTERS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 01/29/2024

A. The motion to compel the deposition of the person most knowledgeable for defendant San Diego Flood Busters, Inc. is GRANTED. Code Civ. Proc. §§ 2024.050, 2025.480(a).

As an initial matter, the court notes that the motion is not accompanied by a separate statement, as required by CRC 3.1345(a)(4). The court, however, elects to exercises its discretion and will consider the motion notwithstanding this procedural defect. See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409 fn. 14 ('[T]he court rule requiring a separate statement on a motion to compel further responses...does not limit a trial court's discretion to compel further answers notwithstanding the absence of a separate statement.'); see also Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29, 32 ('Rigid rule following is not always consistent with a court's function to see that justice is done.').

Turning to the merits, the court is not persuaded that Code of Civil Procedure section 2025.610 precludes plaintiff from deposing Roman Ruiz as the PMK for Flood Busters. Section 2025.610(a) provides that '[o]nce 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.' Here, Ruiz was previously deposed in his individual capacity. Plaintiff now seeks to depose Flood Busters. '[A] corporation can speak only through an officer, employee, or some other natural person.' D. I.

Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 732. Had the Legislature intended to prohibit a party from deposing a PMK of an organizational defendant where the designated individual had been previously deposed in his individual capacity, the Legislature would have used the word 'natural person' – as it did in the beginning of subdivision (a) – rather than 'deponent.' 'When the Legislature uses different words in the same statute, we must presume it intended a different meaning.' People v. Hardacre (2001) 90 Cal.App.4th 1392, 1398.

Flood Busters argues that subdivision (c)(1) – which allows a party to depose a person as a PMK and then again as a percipient witness – means that depositions occurring in the opposite order are not permitted. However, to read the section 2025.610(c)(1) in such a manner would contravene the very purpose of the statute and allow parties to prevent their opponents from deposing PMKs by simply designating a PMK as an individual who had been previously deposed in his or her individual capacity.

'[T]he court must consider the consequences that might flow from a particular construction and should construe the statute so as to promote rather than defeat the statute's purpose and policy.' Sylva v. Board of Supervisors (1989) 208 Cal.App.3d 648, 654.

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3086487  54 CASE NUMBER: CASE TITLE:  MAKI VS SAN DIEGO FLOOD BUSTERS INC [IMAGED]  37-2020-00045956-CU-NP-CTL Accordingly, Flood Busters is directed to produce the person(s) most qualified to provide deposition testimony and produce the requested documents, as set forth in the deposition notice, on a mutually agreeable date and time to be re-noticed by plaintiff. The deposition(s) must be completed by March 4, 2024, unless the parties agree otherwise.

B. Plaintiff's request for monetary sanctions is denied. The court finds that Flood Busters acted with substantial justification in opposing plaintiff's motion. Code Civ. Proc. § 2025.480(j).

C. Plaintiff's evidentiary objections are overruled.

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