Judge Mark C. Kim, Case 20STCV21798 2022-10-18 Tentative Ruling

Judge: Mark C. Kim, Case: 20STCV21798, Date: 2022-10-18 Tentative Ruling

Case Number: 20STCV21798 Hearing Date: October 18, 2022 Dept: S27

1. Background Facts

Plaintiff, Wenbin Ji filed this action against Defendants, Reflex Scuba Club, Inc. (“RSC”), Jinyou Li, Blue Propeller (“BP”), Zechuan Yu, Naxt Motors, Inc., and Xinxian Gao for damages arising out of an accident that occurred when Plaintiff’s leg made contact with Defendants’ propeller during a scuba trip. Plaintiff’s complaint includes causes of action for negligence and negligent entrustment; each cause of action is asserted against all of the defendants. Naxt and Gao have a cross-complaint pending against Yu.

2. Motion to Compel Deposition

Defendants, Naxt Motors, Inc. and Xinxian Gao (collectively “Naxt”) move to compel Yu’s deposition. Defendants move to compel pursuant to CCP §2025.450. Specifically, they contend they served a proper notice of deposition on Yu, Yu failed to appear, and Yu failed to provide alternative dates for deposition.

On 10/03/22, Defendants obtained an order shortening time for hearing on this motion. The Court specially set the hearing on the motion for 10/18/22. The Court ordered Yu to file any opposition to the motion on or before 10/11/22. As of 10/14/22, the Court has not received opposition to the motion.

Despite the lack of opposition, the motion is denied without prejudice. CCP §2025.250 provides geographical limits for conducting depositions. It makes clear that a deposition cannot be taken more than 150 miles from the deponent’s residence, even if the deponent is a party to the action, absent a stipulation or court order. §2025.260(a) permits a party seeking to conduct a deposition outside of those geographical limits to make an order permitting the deposition to so occur, and sets forth the factors that the Court must consider in ruling on the motion.

Moving Defendants appear to be taking the position that there is a stipulation in place to conduct Yu’s deposition in Los Angeles (Yu resides in China). However, their only evidence in this regard is Exhibit B, which is an email from Yu’s attorney wherein Yu’s attorney asks that the deposition take place over zoom. Nothing in the email indicates Yu intends to be in Los Angeles for the deposition.

Moving Defendants also appear to be taking the position that deposition of Yu in Los Angeles is necessary because Chinese law does not permit remote depositions or use of depositions taken in China for use in a foreign court. Moving Defendants base this position solely on their attorney’s declaration. The declaration cites to no authority, and the Court is not independently familiar with Chinese law. Regardless, Defendants moved pursuant to CCP §2025.450, but did not move pursuant to §2025.260. A motion under §2025.260 is a prerequisite to an order compelling a deposition outside of the permitted geographical limits. Defendants did not address the factors in §2025.260, did not notice their motion under §2025.260, and did not provide the information necessary for the Court to grant the motion.

Finally, the Court notes that Defendants provided evidence that the parties had an agreement to proceed with a deposition on 9/29/22 (whether by zoom or in person is unclear), and Yu’s flight was canceled by Chinese order due to Covid. The Court does not know the scope or duration of the Chinese order, or whether any supplemental orders have been issued. The Court cannot compel Yu to travel to the United States if doing so is impossible under a Chinese order. The Court certainly will not sanction him for failing to fly in the face of an order cancelling flights.

The motion is denied. The ruling is without prejudice to Defendants’ right to make a motion under §2025.260 and made all necessary showings under that section. The Court asks Counsel to continue to meet and confer in an attempt to arrange for Yu’s deposition absent further law and motion practice. The Court notes that the need for Yu’s deposition is clear, and the parties must find a way to conduct the deposition that complies with both California law and Chinese law.

Moving Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. 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. 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 any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.