Judge: Mark H. Epstein, Case: 24SMCV02024, Date: 2024-10-18 Tentative Ruling

Case Number: 24SMCV02024    Hearing Date: October 18, 2024    Dept: I

The motion to compel is GRANTED.  The request for sanctions is GRANTED in the amount of $2625 against defendant and defense counsel, payable within 30 days.  Defendant’s reading of the statute is wrong and does not reflect the words actually used as to whether the deponent can appear remotely.  That is just not what the statute says and there is no case of which the court is aware that interprets the statute that way.  The statute states that “any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent.”  Obviously, the deponent must be present at the deponent’s location.  Everyone else has the right to be present.  (CCP 2025.310(b).)  The Rule of Court concerning this statute provides that “Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference [or other method]” and a “deponent must appear as required by statute or as agreed to by the parties and deponent.”   (Cal R. Ct. 3.1010(b)-(c).)  The plain reading of the statute and rule support the traditional notion that depositions will be in person, but they allow remote appearances at the deposition by people other than the deponent.  It does not give the deponent the unilateral right to appear remotely.  There was no basis to the opposition or the refusal to present the witness in person for appearance.  Defendant also complains of the meet and confer.  Given defendant’s position, and defendant’s declaration of impasse without any meaningful discussion, plaintiff did all that is required.  The sanctions are against counsel because the legal position is obviously one promoted by counsel, and defense counsel’s poor efforts and the meet and confer were not proper.  Therefore, the problem here is not one of the client’s making alone, but rather were the result of poor conduct by counsel.

No later than 72 hours from now, defendant will set forth three dates—all work days—not less than two weeks from today and not more than 5 weeks from today.  No later than 72 hours after receiving the timely dates, plaintiff will pick a deposition date that is on a work day and not one of the three dates defendant set forth.  The deposition will then continue from day to day except for weekends, holidays, and the three days defendant had specified.  (For avoidance of doubt, Monday, November 11, 2024 is a holiday, as is Thursday November 28 and Friday November 29.)  It will go until completed.  (Again, for avoidance of doubt, the court is not making any rulings regarding the 7 hour limit set forth in the CCP.)  It will start at 9:00 am and conclude at 5:00 pm with a 1 hour lunch and two 15 minute breaks, one in the morning and one in the afternoon.

The parties can alter the above procedure by written agreement without the need for court approval.