Judge: Mark C. Kim, Case: 22STCV43795, Date: 2023-03-28 Tentative Ruling

Case Number: 22STCV43795    Hearing Date: March 28, 2023    Dept: S27

1.     Background Facts

Plaintiffs, Antonio Calderon, Ana Canchola, and Frank G. Martinez filed this action against Defendant, SCE for damages arising out of an electrical explosion and fire in an underground high-voltage vault. 

 

2.     Motion to Compel Deposition

a.     Initial Note

Plaintiff filed this motion on 3/21/23, with a hearing date of 3/28/23.  This clearly violates CCP §1005, and resulted in the Court not realizing the hearing was on calendar until the penultimate moment.  Notably, Plaintiff’s proof of service of the moving papers on Defendant shows service on 3/21/23; however, Defendant filed timely opposition to the motion and Plaintiff filed timely reply papers, so the Court understands Defendant must have had timely notice of the motion; Defendant does not contend otherwise in its reply.  The Court will rule on the motion despite the filing defect, but asks Plaintiff’s attorney to ensure all papers are timely filed in the future in connection with this and other actions.

 

b.     History of Dispute

Plaintiffs propounded a notice of deposition on Defendant’s employee, Joseph Pham, on 12/19/22, setting his deposition for 1/05/23.  Pham did not appear.  The parties met and conferred, but were unable to resolve the dispute.  Plaintiffs then filed this motion.

 

c.     Meet and Confer

Defendant contends Plaintiffs did not adequately meet and confer prior to filing this motion.  CCP §2025.450(b)(2) merely requires a meet and confer declaration “stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  While additional efforts are always appreciated, they are not required per Code.  Defendant complied with the requirement.

 

d.     Defendant’s Arguments

 Defendant concedes Pham is a current employee and therefore can be required to sit for deposition upon notice and without a subpoena.  Defendant contends, however, that Pham has been out on long-term disability since January of 2022, and therefore Defendant cannot contact him to require him to sit for deposition without violating various statutes, including the ADA and UNRUH.  Defendant also contends Pham’s testimony is not necessary in this action because his only connection to the subject incident is performance of the annual grid patrol inspection approximately three months prior to the subject incident.  Finally, Defendant contends it wishes to seek a protective order to prevent the deposition, but did not have time to file the papers and secure a hearing date after it was served with Plaintiffs’ moving papers and before the hearing is set to go forward.

 

The Court finds, on the issue of relevance, that it is clear performing a major safety inspection several months prior to an explosion and fire leads to the conclusion that Pham has relevant information such that a deposition would be necessary. 

 

The issue of disability is more difficult.  Defendant establishes Pham has been out on long-term disability since January of 2022, but provides no information about the nature of his disability.  There are many disabilities that would not preclude a deposition from going forward, such as a chronic orthopedic condition that prevents one from doing his job, a chronic lung condition that precludes the type of labor required by the job but not sitting for a deposition, etc.  The Court understands Defendant may not wish to reveal its employee’s private medical information in the public record, but the Court asks Defense Counsel to be prepared to address this issue in camera, and to bring any necessary disability-related records as evidence of the nature of the condition causing Pham to be off work.

 

Defendant argues it CANNOT compel Pham to sit for deposition without violating the ADA and/or UNRUH.  Defendant does not cite any authority for this position.  The Court is not inclined to do Defendant’s research for it.  If Defendant truly believes this to be the case, Defendant must provide specific, on-point authority at the time of the hearing. 

 

If the Court is not satisfied, at the time of the hearing, with Defendant’s showing that Pham cannot sit for deposition in light of his disability, and/or that Defendant cannot produce Pham for deposition due to his medical leave status, the Court will grant the motion.  If the Court finds the latter is the case (but not the former), the Court will treat Pham as a non-employee and will require Defendant to provide Pham’s address so he can be subpoenaed as a non-employee witness.  Defendant cannot have its proverbial cake and eat it too; it cannot, on the one hand, argue Pham is its employee and therefore he cannot be subpoenaed for deposition, and on the other hand that he is an employee out of work on disability and therefore employment law precludes it from requiring Pham to honor a notice of employee deposition.