Judge: Randy Rhodes, Case: 19STCV31981, Date: 2023-02-08 Tentative Ruling

Case Number: 19STCV31981    Hearing Date: February 8, 2023    Dept: F51

Dept. F-51¿ 

Date: 2/8/23¿ 

Case #19STCV31981

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MOTION FOR LEAVE TO DEPOSE INCARCERATED WITNESS

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Motion filed: 9/16/22 

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MOVING PARTY: Defendant The Board of Trustees of the California State University (“CSU”)

RESPONDING PARTY: Plaintiff Francisco Salas (“Plaintiff”)

NOTICE: OK 

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RELIEF REQUESTED: An order granting CSU leave to depose defendant Joe Fileto via remote videoconferencing.

TENTATIVE RULING: The motion is granted.

BACKGROUND

This action arises out of Plaintiff’s allegation that he was assaulted by a co-employee, defendant Joe Fileto on 5/22/19. (Third Amended Complaint (“TAC”), ¶ 30.) Fileto allegedly attacked Plaintiff without provocation and struck him repeatedly with a shovel while the two were working on the construction of a parking structure at the California State University Northridge campus under the employment of defendant Bomel Construction Company, Inc. (“Bomel”). (Id. at ¶¶ 26–30.)

In his TAC, filed on 9/4/20, Plaintiff alleges ten total causes of action against Defendants, including a cause of action for negligence as against CSU. (Id. at ¶¶ 147–170.) Plaintiff alleges that he sustained physical and emotional injuries as a result of the incident which include “severe head, scalp and ear lacerations, a broken nose, … a concussion,” emotional trauma, helplessness, and devastation. (Id. at ¶¶ 34–35, 184–189.)

On 9/16/22, CSU filed the instant motion for leave to depose Fileto, who is currently incarcerated at a State prison. No opposition has been filed to date.

ANALYSIS

“If in a civil action or special proceeding a witness be a prisoner, confined in a state prison within this state, an order for the prisoner’s examination in the prison by deposition may be made … by the court itself in which the action or special proceeding is pending …Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. The deposition, when ordered, shall be taken in accordance with Section 2622.” (Pen. Code § 2623.)

Here, CSU has attached to its motion the declaration of its attorney Alexander Rynerson, addressing the requirements under Penal Code section 2623. The underlying factual allegations in this action are set forth above. This is a personal injury action arising from Fileto’s alleged assault which caused Plaintiff to suffer various physical and emotional injuries. Fileto is a named defendant in the instant action, and CSU expects Fileto’s deposition testimony “to cover, inter alia, the circumstances of the alleged Incident between Plaintiff and Mr. Fileto; whether Plaintiff insulted Mr. Fileto immediately before the alleged attack; their history of conflict, which is in dispute; Mr. Fileto’s disciplinary history at Bomel, which is in dispute; and Mr. Fileto’s alleged use of drugs and alcohol prior to and inclusive of the date of the Incident, which is in dispute.” (Decl. of Alexander Rynerson, ¶ 2.) Rynerson contends that “the testimony of Mr. Fileto is necessary to properly inform our clients regarding settlement.” (Ibid.)

Based on the foregoing, the Court finds that the instant unopposed motion for leave to depose Fileto satisfies the requirements set forth under Penal Code section 2623. Accordingly, the Court grants CSU’s motion for leave to depose Fileto.

CONCLUSION

The motion is granted.