Judge Monica Bachner, Case 21STCV03788 2022-10-18 Tentative Ruling

Moving Defendants Benson Williams II’s, US Storage Centers, Inc.’s, Westport Properties, Inc.’s, and Hawthorne Mini Venture, LLC’s motion to compel Plaintiff Wesley Robbins to appear for a deposition is granted. Plaintiff is to appear for deposition in Moving Defendants’ Counsel’s office located at 3100 Bristol Street, Suite 100, Costa Mesa, CA 92626 within 15 days of the hearing on this motion.

Moving Defendants’ request for monetary sanctions is granted in the reduced amount of $867.00 against Plaintiff. Sanctions to be paid within 15 days.

Defendants Benson Williams II (“Williams”), US Storage Centers, Inc. (“US Storage”), Westport Properties, Inc. (“Westport”), and Hawthorne Mini Venture, LLC (“Mini”) (collectively, “Moving Defendants”), move to compel Plaintiff Wesley Robbins (“Robbins”) (“Plaintiff”) to appear for a deposition. Moving Defendants also request monetary sanctions against Plaintiff in the amount of $4,394.00. (Notice of Motion, pg. 2.)

Plaintiff filed his initial complaint in the instant matter on January 29, 2021, and the first operative amended complaint (“FAC”) on January 14, 2022. The FAC alleges fifteen causes of action related to civil conspiracy involving multiple defendants, including Moving Defendants. On September 21, 2022, Moving Defendants filed the instant motion in light of issues obtaining Plaintiff’s deposition.[1]

Moving Defendants submitted evidence that Plaintiff’s first session of his deposition was noticed for and remotely held on March 22, 2022. (See Decl. of Wright ¶2, Exh. A.) Defendants argue during this deposition, Plaintiff appeared at a park with incessant background noise and internet connectivity issues that caused ongoing video lagging, delays, and audio interruptions including screaming children in the background. (See Decl. of Wright ¶3, Exh. B.) Plaintiff was asked to go to a building without background noise and with adequate internet connection to prevent ongoing issues and delays, however, Plaintiff refused to do so. (See Decl. of Wright ¶3, Exh. B.) Eventually, the deposition concluded for that session, but was far from being completed, because Plaintiff’s laptop battery had no more power left, thus requiring a second deposition session. (See Decl. of Wright ¶3, Exhs. B, C.)

Moving Defendants argue Plaintiff has appeared at other remote video depositions outdoors and/or in a car, which led to ongoing delays including Plaintiff’s screen freezing during his cross-examination of Officer Shelly Yoshida from Hawthorne Police Department, which continued until the deposition had to be concluded due to Plaintiff being unable to reconnect in a timely manner after requests for him to connect to adequate Wi-Fi. (Decl. of Wright ¶¶6, 7, Exh. D.)

Part two of Plaintiff’s deposition was duly noticed for July 11, 2022 at 1:00 p.m. (See Decl. of Wright ¶8, Exh. E.) Plaintiff was over ten minutes late to his deposition and had to request the Zoom link to his deposition, which was emailed to him on June 28, 2022, resulting in a further delay. (See Decl. of Wright ¶9, Exh. F.) Plaintiff briefly appeared for part two of his deposition in a car and his background was blurry, which was indicative of poor internet connection. (Decl. of Wright ¶10.) Before Plaintiff could be administered an oath to commence the second session, Plaintiff became irate, started talking over Moving Defendants’ Counsel, Viretha Wright, said he was “not going to take this,” then abruptly and intentionally disconnected from his remote appearance. (Decl. of Wright ¶11.)

Immediately thereafter, Wright and William Brownstein sent Plaintiff an email addressing Plaintiff’s ongoing internet connectivity issues and requested Plaintiff appear for his deposition in a quiet place with adequate internet connection and to that end, gave Plaintiff until 1:40 p.m. to appear again. (See Decl. of Wright ¶12, Exh. G.) Plaintiff did not appear as requested and Moving Defendants’ Counsel issued a Certificate of Non-Appearance. (See Decl. of Wright ¶13, Exh. H.)

On July 13, 2022, Plaintiff e-mailed counsel. (Decl. of Wright ¶14, Exh. I.) In his email, Plaintiff stated he appeared in good faith and at the time of check-in discovered that the notices for the deposition lacked a Zoom invitation link. (Decl. of Wright, Exh. I.) Plaintiff stated in his email, “[i]f you want a deposition of me then you are going to have to be civil and allow for wi-fi hiccups and such” and stated he was “available for a deposition 15-20 of September, 2022, afternoon, by ZOOM.” (Decl. of Wright, Exh. I.)

Moving Defendants’ Counsel replied to Plaintiff’s email July 13, 2022, by requesting an in-person deposition in early August. (Decl. of Wright ¶16, Exh. J.) Plaintiff responded on July 14th indicating that he was available mid-September via Zoom. (See Decl. of Wright ¶17, Exh. K.)

C.C.P. §2025.450(a) provides that, “[i]f, after service of a deposition notice, a party to the action . . . without having served a valid objection under Section 2025.410, fails to appear for examination . . . , the party giving the notice may move for an order compelling the deponent’s attendance and testimony.”

C.C.P. §2025.410(a), provides that, “[a]ny party served with a deposition notice that does not comply with [the notice requirements in C.C.P. §§2025.210 through 2025.290] waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”

C.C.P. §2025.450(b)(1) provides that, “[t]he motion [to compel deposition] shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

C.C.P. §2025.450(b)(2) provides that, “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition . . . by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Moving Defendants are entitled to an order compelling the deposition of Plaintiff, since Plaintiff’s deposition has not been completed; Plaintiff agreed to appear for the second part of his deposition, and Moving Defendants are entitled to proceed with additional testimony. (C.C.P. §2025.290(b).)

A party-deponent must appear in person for a deposition; pursuant to C.C.P. §2025.250(a), “the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either 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.” (C.C.P. §2025.250(a).) Prior to the COVID pandemic, C.C.P. §2025.310(a) provided “that a person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means.” (C.C.P. §2025.310(a).) C.C.P. §2025.310(b) gave this Court discretion to allow a non-party deponent to appear at the deposition by telephone if it finds there is good cause and no prejudice to any party, and provided, “[a] party deponent shall appear at the deposition in person and be in the presence of the deposition officer.” (C.C.P. §2025.310(b).)

In light of the COVID pandemic, the California Legislature revised C.C.P. §2025.310, which now provides:

(C.C.P. §2025.310.) Revised C.C.P. §2025.310(a) allows the deposition officer (i.e., court reporter) to be in a different location than the deponent. (C.C.P. §2025.310(a).) Revised C.C.P. §2025.310(b) allows a party (who is not a deponent) and any counsel to be in a different location than the deponent. (C.C.P. §2025.310(b).) The section does not grant a party-deponent such as Plaintiff the right to be in a different location than the deposing counsel. C.C.P. §2025.310(b) provides that the deposing attorney has the right to be “physically present at the place of the deposition with the deponent.”

Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided: (1) Written notice of such appearance is served by personal delivery, email, or fax at least five court days before the deposition; (2) The party so appearing makes all arrangements and pays all expenses incurred for the appearance.

(C.R.C., Rule 3.1010(b).) Rule 3.1010(c) makes clear the “deponent must appear as required by statute or as agreed to by the parties and deponent.” (C.R.C., Rule 3.1010(c).) A party-deponent is not permitted to appear at the deposition remotely absent a protective order pursuant to C.C.P. §2025.420. (C.C.P. §2025.420(a).) Plaintiff cannot “elect” to appear remotely.

Based on the foregoing, Moving Defendants’ motion to compel Plaintiff to appear for in-person deposition is granted. Plaintiff is to appear for deposition in Moving Defendants’ Counsel’s office located at 3100 Bristol Street, Suite 100, Costa Mesa, CA 92626, within 15 days of the hearing on this motion.

Plaintiff’s request for monetary sanctions is granted. The Court awards sanctions in the reduced total amount of $867.00, comprised of 2 hours of attorney time at $160 per hour, $332.00 for court reporter fees incurred during the attempted deposition, and $215.00 videographer fee against Plaintiff Wesley Robbins. Sanctions to be paid within 15 days.

[1] The Court received evidentiary objections from non-moving Defendants Lionel Pereira and Southern California Coin and Stamp, filed October 5, 2022, to Plaintiff’s declaration that is attached to his opposition. The Court is not considering non-moving parties’ evidentiary objections on this motion.