Judge: Michael E. Whitaker, Case: 20STCV22794, Date: 2022-10-21 Tentative Ruling

Case Number: 20STCV22794    Hearing Date: October 21, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Plaintiff Adriana Casillas (Plaintiff) sued Defendants Martin Cadillac, Inc. and Christian Madrigal (collectively, Defendants) based on a motor vehicle collision.  Defendants move to compel Plaintiff’s appearance for deposition.  Plaintiff filed an opposition to the motion and Defendants reply to the opposition.

Foremost, Defendants contend that Plaintiff’s opposition is untimely.  Per Code of Civil Procedure section 1005, all papers opposing a motion shall be filed with the Court and a copy served on each party at least nine court days before the hearing.  (Code Civ. Proc., § 1005, subd. (b).)  Based on the hearing date of October 21, 2022, Plaintiff was thus required to file and serve the opposition by no later than October 10, 2022.  Plaintiff’s proof of service filed in connection with the opposition states Plaintiff served the opposition on October 11, 2022, electronically.  Notwithstanding, Defendants have submitted a reply to the opposition with full briefing on the merits.  The Court therefore concludes that Defendants will not be prejudiced by the Court’s consideration of Plaintiffs’ opposition on its merits and exercises its discretion to do so.

ANALYSIS

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent’s attendance and testimony.  (Code Civ. Proc., § 2025.450, subd. (a).) 

Here, on July 27, 2021, Defendants served a deposition notice on Plaintiff.  Defendants noticed Plaintiff’s deposition for September 2, 2021.  On August 17, 2021, Plaintiff served an objection to Defendants’ notice based on Plaintiff’s unavailability and request for a remote deposition. On September 29, 2021, Defendants served an amended notice of deposition on Plaintiff, setting a new deposition date for October 22, 2021. Plaintiff did not appear for deposition on that date.  As of the date of filing of this motion, Plaintiff has not appeared for deposition. 

In opposition, Plaintiff contends that she is not required to attend an in-person deposition, and that her request for a remote deposition should be honored.  Plaintiff is incorrect. 

Code of Civil Procedure section 2025.310, in pertinent part, states that “[a]t the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means.  A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition.   Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent.”  (Code  Civ. Proc., § 2025.310, subds. (a)-(b). emphasis added.)[1]  Thus, the plain language of the statute does not support Plaintiff’s assertion that she may elect to have her deposition conducted remotely.  Per Section 2025.310, other parties, counsel or the deposition officer (court reporter) may choose to appear remotely for the deposition, not the deponent. 

Further, Plaintiff’s reliance on Code of Civil Procedure section 2025.420 and California Rules of Court, rule 3.1010, to support her assertion that a deponent may elect not to appear for an in-person for deposition is faulty.  First, Section 2025.420 pertains to protective orders but Plaintiff has not moved for a protective order.  While the Court understands the desire for Covid-19 precautions, Plaintiff has not offered evidence that Defendants would be unwilling to observe safety protocols when conducting Plaintiff’s deposition, including social distancing, temperature checks, and masks.  In short, Plaintiff has not advanced any competent evidence that a protective order would be warranted under the circumstances.  Second, Rule 3.1010 provides options for how and when depositions are conducted but does not provide that a deponent may elect to appear for deposition remotely if he or she so chooses.  

CONCLUSION AND ORDER

The Court grants Defendants’ motion to compel Plaintiff to appear for deposition per Code of Civil Procedure section 2025.450, and orders Plaintiff to appear in-person for deposition within 20 days of notice of the Court’s order, unless Defendant stipulates otherwise. In addition, the Court orders the parties to observe safety protocols if warranted when conducting Plaintiff’s deposition, including but not limited to social distancing, temperature checks and use of masks.

Defendant shall provide notice of the Court’s orders and file a proof of service of such.