Judge Melvin D. Sandvig, Case Number: 23CHCV01325, Date: 2024-05-21 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 23CHCV01325, Date: 2024-05-21 Tentative Ruling

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Case Number: 23CHCV01325 Hearing Date: May 21, 2024 Dept: F47

Dept. F47

Date: 5/21/24 TRIAL DATE: 4/14/25

Case #23CHCV01325

2 MOTIONS TO COMPEL DEPOSITION

Motions filed on 4/5/24.

MOVING PARTY: Defendant Giovanni Licea

RESPONDING PARTY # 1: Plaintiff Cesar Valenzuela aka Cesar Amezcua

RESPONDING PARTY # 2: Plaintiff Petra Pelayo

NOTICE: ok

RELIEF REQUESTED:

(1) An order compelling Plaintiff Cesar Valenzuela aka Cesar Amezcua to attend and testify at deposition on 6/4/24 at 9:30 a.m. at the offices of Mark R. Weiner & Associates located at 655 N. Central Avenue, Suite 1125, Glendale, California 91203-1434. Additionally, Defendant Giovanni Licea requests an order imposing sanctions against Plaintiff Cesar Valenzuela aka Cesar Amezcua and his attorney, Alexander J. Zeesman, in the amount of $2,509.02; and

(2) An order compelling Plaintiff Petra Pelayo to attend and testify at deposition on 6/10/24 at 9:30 a.m. at the offices of Mark R. Weiner & Associates located at 655 N. Central Avenue, Suite 1125, Glendale, California 91203-1434. Additionally, Defendant Giovanni Licea requests an order imposing sanctions against Plaintiff Petra Pelayo and her attorney, Alexander J. Zeesman, in the amount of $2,497.02.

RULINGS: The motions are granted as set forth below.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of an automobile accident that occurred on 7/23/21. Plaintiffs Sara Valenzuela, Cesar Valenzuela and Petra Pelayo claim that Defendant Giovanni Licea (Defendant) caused the accident. Additionally, Plaintiffs claim to have suffered injuries as a result of the accident. Therefore, on 5/4/23, Plaintiffs filed this action against for negligence and motor vehicle.

In July of 2023, Defendant noticed the depositions of Plaintiff Cesar Valenzuela aka Cesar Amezcua (Cesar) for 11/7/23 and Plaintiff Petra Pelayo (Pelayo) (collectively, Plaintiffs) for 11/8/23. (See McNulty Decls., Ex.A). Plaintiffs objected to the November dates on the grounds that they were unavailable; however, despite repeated requests, neither Plaintiff confirmed alternative deposition dates and neither appeared for their depositions on the noticed dates in November. (McNulty Decls., Ex.C-F).

Thereafter, Defendant re-noticed Cesar and Pelayo’s depositions for 2/7/24 and 2/8/24, respectively; however, due to a family emergency, Defendant’s counsel rescheduled the depositions for 3/19/24 and 3/22/24. (McNulty Decls., Ex.H-M). Thereafter, Plaintiffs’ counsel objected to the depositions being conducted in person at defense counsel’s office as noticed. (McNulty Decls., Ex.N). Counsel for the parties could not agree on the location/mode of deposition. (McNulty Decl., Ex.O; A. Zeesman Decls.). Therefore, on 4/5/24, Defendant filed and served the instant motions seeking:

Cesar and Pelayo have opposed the motions and Defendant has filed a joint reply to the oppositions.

ANALYSIS

There is no dispute that Defendant is entitled to take the depositions of Plaintiffs. The dispute involves whether Defendant is entitled to take the depositions in person at his counsel’s office as noticed or whether Plaintiffs can insist that the depositions be conducted remotely.

The deposing party may notice a deposition within 75 miles of the deponent’s residence or within the county where the action is pending and within 150 miles of the deponent’s residence. CCP 2025.220(a)(1); CCP 2025.250(a). Plaintiffs do not claim that the location of the noticed depositions, defense counsel’s office, does not fall within the parameters of CCP 2025.250(a).

As conceded in the oppositions, while CCP 2025.310(a) allows a deponent to require that the deposition officer be in a different location than the deponent during the deposition, it does not allow the deponent to elect to appear remotely for the deposition or choose the physical location of the deposition. As noted in CCP 2025.310(d), “[a]n exercise of the authority granted by subdivision (a) or (b) does not waive any other provision of this title, including, but not limited to, provisions regarding the time, place, or manner in which a deposition shall be conducted.” CCP 2025.310(b) provides:

“Subject to Section 2025.420 [re protective orders], any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent. If a party or attorney of record elects to be physically present at the location of the deponent, all physically present participants in the deposition shall comply with local health and safety ordinances, rules, and orders.”

As such, Plaintiffs have failed to support their claim that they are “entitled to remote deposition.” (See Oppositions, p.3:11).

Similarly, Plaintiffs have failed to establish that they are entitled to protective orders requiring that the depositions be conducted remotely. (See Oppositions, p.5:6).

CCP 2025.420(a) provides, in part, that “[b]efore, during, or after a deposition, any party, any deponent, or any other affected or natural person or organization may promptly move for a protective order.” Here, Plaintiffs never moved for a protective order. Rather, they objected to the taking the depositions scheduled in March 2024 on the invalid ground that they are entitled to appear remotely and improperly request a protective order in their oppositions to the instant motions to compel depositions. (McNulty Decls., Ex.N). Plaintiffs did not even raise the issue of taking the depositions remotely until approximately 4 months after the depositions were originally noticed. (See McNulty Decl. ¶¶3, 17, Ex.A, K). As such, Plaintiffs failed to meet the statutory requirement of promptly moving for a protective order.

Even if Plaintiffs had promptly sought such relief, they have not shown that such relief is warranted in order to protect them from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense as is required for the issuance of a protective order. See CCP 2025.420(b). Plaintiffs have failed to support their claims that their injuries or lack of transportation make in person depositions impractical with any admissible evidence. Additionally, such claims are belied by the email communications between counsel wherein Plaintiffs’ counsel complains about the parking and other amenities at defense counsel’s office as the reasons why the depositions should be conducted remotely. Further, in the email communications, Plaintiffs’ counsel were fine with having their clients travel to their office for the depositions which indicates that it is the convenience of Plaintiffs’ counsel which is behind the refusal to appear in person at defense counsel’s office for the depositions as noticed.

Under the current law, Defendant is entitled to choose the location of the Plaintiffs’ deposition, within certain parameters which have been followed in this case, unless Plaintiffs promptly move for a protective order and show good cause for such relief, which as set forth above, they have failed to do. As such, Defendant is entitled to orders compelling Plaintiffs to appear for their depositions as requested. CCP 2025.450(a), (b).

Defendant is entitled to sanctions against Plaintiffs and their attorney, Alexander Zeesman, for their failure to comply with their discovery obligations without good cause. CCP 2023.010(e), (f); CCP 2023.030(a); CCP 2025.450(g)(1).

The Court finds that reduced sanctions in the amount of the $2,028.52 in relation to the motion to compel Cesar’s deposition and reduced sanctions in the amount of $2,016.52 in relation to the motion to compel Pelayo’s deposition are reasonable. (See McNulty Decls. ¶29). The Court has reduced the amount of sanctions requested for the preparation of each motion, review of the opposition to each motion, preparation of a reply and time to appear by half for each motion since each motion and opposition thereto were essentially the same, one joint reply has been filed and the hearing on each motion is on the same date.

CONCLUSION

The motions are granted.

Plaintiff Cesar Valenzuela aka Cesar Amezcua is ordered to attend and testify at deposition on 6/4/24 at 9:30 a.m. at the offices of Mark R. Weiner & Associates located at 655 N. Central Avenue, Suite 1125, Glendale, California 91203-1434. Additionally, sanctions are imposed against Plaintiff Cesar Valenzuela aka Cesar Amezcua and his attorney, Alexander J. Zeesman, in the amount of $2,028.52, payable within 30 days.

Plaintiff Petra Pelayo is ordered to attend and testify at deposition on 6/10/24 at 9:30 a.m. at the offices of Mark R. Weiner & Associates located at 655 N. Central Avenue, Suite 1125, Glendale, California 91203-1434. Additionally, sanctions are imposed against Plaintiff Petra Pelayo and her attorney, Alexander J. Zeesman, in the amount of $$2,016.52, payable within 30 days.

The Court notes that Plaintiffs’ counsel has failed to electronically bookmark the exhibits attached to the oppositions as required. CRC 3.1110(f)(4). Counsel for the parties in warned that failure to comply with this rule in the future may result in matters being continued so that papers can be re-filed in compliance with the rule, papers not being considered and/or the imposition of sanctions.