Gricelda Arvizu v. Southern California Pain Consultant, Inc., et al.

MOTION TO COMPEL IN-PERSON DEPOSITION OF PLAINTIFF

 

MOVING PARTIES: Defendants Southern California Pain Consultants, Inc.; Kenneth Sterling Bradley

RESPONDING PARTY(S): Plaintiff Gricelda Arvizu

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Gricelda Arvizu brings employment and related tort claims against her former employer, Defendants Southern California Pain Consultants, Inc. and Kenneth Sterling Bradley.  Plaintiff, as a single mother, alleges she experienced harassment and discrimination due to her marital status and gender.  She also alleges that Defendants retaliated against her by taking Fridays from her work schedule.  On Plaintiff’s last day of work, she alleges that Defendants assaulted her by hitting her with a door.

Defendants now move for an order compelling Plaintiff to appear for her deposition in-person.  Plaintiff opposed.

TENTATIVE RULING:

Defendants’ Motion to Compel Plaintiff’s In-Person Deposition is DENIED.

Moving party to give notice, unless waived.  

DISCUSSION:

Defendants’ Motion to Compel In-Person Deposition of Plaintiff

A. Judicial Notice 

Defendants ask the court to take judicial notice of two rulings from the Los Angeles Superior Court—that request is DENIED. 

With certain exceptions, not applicable here, the Rules of Court generally prohibit judicial notice of unpublished opinions. (See Cal. Rules of Court, rule 8.1115(a); See also Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal. 5th 260, 269.)  Trial court opinions are unpublished and have no precedential value.  (Neary v. Regents of Univ. of Calif. (1992) 3 Cal.4th 273, 282.)

B. Objections to Evidence

Defendants object to the Declaration of Plaintiff Gricelda Arvizu and the Declaration of Plaintiff’s counsel, Britanie Crippen.

This Court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)] or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

As such, this court respectfully declines to rule on these objections.  This court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.

C. Analysis

On July 15, 2022, Defendant Southern served Plaintiff with a Notice of Deposition, scheduling her deposition for September 20, 2022, to take place in-person at Defendants’ counsel’s office.  (Shiff Decl. ¶ 3, Exh. B.) Plaintiff served an objection on August 3, 2022, “on the grounds that the deposition must take place remotely via zoom for Plaintiff and his counsel to be available.”  (Id.) 

After an email exchange between counsel for both parties in which Defendants sought to accommodate an in-person deposition, Plaintiff remained steadfast that she would only appear remotely. (See Shiff Decl., Exh. D.) Despite Plaintiff’s assertions to the contrary, this Court finds the parties adequately met and conferred before bringing this motion.  In addition, it was not necessary that Defendants wait until the scheduled date of the deposition pass to bring this motion.  Plaintiff’s communications indicated, in no ambiguous terms, that she would not appear for an in-person deposition on the scheduled date.  (Id.)

Defendants contend an in-person deposition is necessary “to ensure that (1) plaintiff is not distracted by her children or her family members during what will be an all-day deposition, (2) the deposition will not be interrupted by plaintiff’s technological difficulties and (3) plaintiff will not intentionally or inadvertently rely on impermissible materials to respond to questions.”  (Mtn. 10: 17-20.)  Defendants contend that an in-person deposition will allow them to better “gauge [Plaintiff’s] demeanor.”  (Shiff Decl. 4: 10.) Defendants also contend that Plaintiff’s reliance on the Covid-19 pandemic is merely a pretext to avoid appearing in-person.  The contend that Plaintiff worked in Defendants’ office at the height of the pandemic without expressing concern for Covid-19.  (Bradley Decl. ¶ 18.)

In opposition, Plaintiff submits her declaration in which she attests she is “very afraid of Dr. Bradley,” and “would feel much safer in a remote deposition.” (Arvizu Decl. ¶ 5.)  She also states that she lives with her 62 and 63-year old parents, both of whom are immunocompromised.  (Id. 10: 17-20.) Plaintiff’s counsel, Britanie Crippen, also submits a declaration in which she attests that she sees her “elderly grandmother on a regular basis,” who “has kidney disease and many other conditions that make her at a high risk of death from COVID-19.”  (Crippen Decl. ¶ 10.)

First and foremost, the recent amendments to the CCP, expressly allow a deponent to unilaterally chose to appear remotely to his or her deposition.  CCP § 2025.310 (b).  The party seeking the deposition by an in-person means has the burden to demonstrate that there is “good cause” to order an in-person deposition, per CCP § 2025.420.

This Court has considered all of the points raised by both parties, as discussed supra.  Defendants have not met their burden to show that an in-person deposition is necessary.  Throughout the pandemic, remote technology proved to be a safe and efficient means of conducting depositions.  Although the court agrees that Covid-19 is not the active threat it once was, Defendants have not demonstrated that the deposition cannot be meaningfully effectuated by remote means.  

Of course, one should be careful for what one asks.  A party who opts to have his or her deposition to be conducted remotely, without opposing counsel being present in the room in which the deponent is being questioned, may be subject to fair comments at the time of trial as to whether or not that deponent was being “coached” or otherwise inappropriately counseled during the deposition.   This is the risk one takes.

Accordingly, Defendants’ motion to compel an in-person deposition is DENIED.

IT IS SO ORDERED.

Moving parties to give notice, unless waived.  

Dated:   September 21, 2022 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.