Judge: Richard Y. Lee, Case: 30-2022-01260356, Date: 2023-05-25 Tentative Ruling

Defendant Vincentbenjamin Group, LLC (“Defendant”) moves for an order compelling Plaintiff, Ghazala Khan, (“Plaintiff”) to appear for her deposition in-person within 30 days of the Court’s order compelling her appearance.

Defendant contends that Plaintiff’s counsel previously agreed to produce Plaintiff for deposition in-person at Defendant’s counsel’s Orange County office on April 21, 2023, and that Plaintiff’s counsel confirmed on March 12, 2023, that Plaintiff would appear in-person, but that three days before the deposition on April 18, 2023, Plaintiff’s counsel demanded that the deposition take place via remote videoconference due to the distance. Defendant also contends that at no time prior to the date of the deposition set for April 21, 2023, did Plaintiff’s counsel serve objections to the deposition notice. Defendant additionally asserts that when Defendant’s counsel requested Plaintiff’s address, Plaintiff’s counsel did not respond, and that Defendant’s counsel offered to move the location of the deposition to comply with the geographic limits set forth in Code of Civil Procedure section 2025.250 provided that Plaintiff appear in-person, and offered to have Plaintiff’s counsel appear remotely, but that Plaintiff’s counsel unilaterally decided to “call off” the deposition, and provided no other dates. Defendant argues that there is no statutory authority in California which permits Plaintiff to dictate whether she will appear in-person for her deposition or not; that Code of Civil Procedure section 2025.310(b) allows the noticing party or noticing attorney to be present at the same location as the deponent during the deposition, and that Defendant has a right to observe and record Plaintiff’s mannerisms, credibility, and demeanor in person. Defendant further argues that it requires Plaintiff’s deposition in order to file its summary judgment motion which is presently reserved for a hearing on November 30, 2023, and that Plaintiff’s pending motion for protective order set in July does not relate to Plaintiff’s deposition.

Plaintiff contends that the deposition was initially set as a remote deposition on Monday, November 14, 2022, and that Defendant’s counsel canceled the deposition without notice on Friday, November 11, 2022, a court-recognized holiday of Veteran’s Day. Plaintiff argues that defense counsel is requesting Plaintiff’s personal appearance for an improper purpose, and has not stated one reason that would necessitate Plaintiff’s personal appearance for deposition at defense counsel’s office in Irvine. Plaintiff also argues that Plaintiff lives more than 70 miles from defense counsel’s office which could result in a drive time as high as three hours; that defense counsel has indicated that they will be deposing Plaintiff for more than one day; that the additional days and additional appearances at defense counsel’s office are a substantial concern for Plaintiff; and that Defendant is already subject to a protection being filed based on their conduct that is set to be heard in July. Plaintiff additionally argues that defense counsel failed to meet and confer with Plaintiff’s counsel prior to filing the present motion, and that Plaintiff’s counsel offered that the deposition be conducted remotely per the original notice, and offered to have the deposition occur at his office in San Diego, but that both alternatives were rejected. Lastly, Plaintiff requests monetary sanctions against Defendant in the amount of $6,000.

Meet and Confer

Here, the declaration of defense counsel indicates that Plaintiff’s deposition was set to occur at defense counsel’s office on April 21, 2023, and that said in-person deposition was confirmed by Plaintiff’s counsel on March 12, 2023, until on April 18, 2023, Plaintiff’s counsel emailed defense counsel requesting that the deposition take place via remote videoconference. (Declaration of Hazel U. Poei, ¶¶ 3-6; Ex. C.) Said declaration also indicates that counsel for the parties corresponded by email on April 19, 2023, where defense counsel attempted to address the geographical concern by finding a different location, if required to comply with Code of Civil Procedure section 2025.250, asserted that Plaintiff had agreed to appear in-person and that the Code of Civil Procedure did not provide a deponent to chose whether to attend a deposition in-person or via remote means, but that Plaintiff’s counsel ultimately responded that “[t]he deposition is off.” (Declaration of Hazel U. Poei, ¶¶ 7-9, 11; Exs. E-H.) The foregoing shows a reasonable and good faith attempt at an informal resolution of the issues presented by the present motion.

Merits

Code of Civil Procedure section 2025.450(a) provides that when a party deponent is served with a deposition notice and, without having served a valid objection under Code of Civil Procedure section 2025.410, fails to appear for deposition, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc. § 2025.450(a)-(b).) 

Under Code of Civil Procedure section 2025.410, any error or irregularity in a deposition notice is waived unless the party served with a deposition notice “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.” (Code Civ. Proc. § 2025.410(a).) “If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition.” (Code Civ. Proc. § 2025.410(b).)

To the extent that Plaintiff seeks to object to the deposition notice due to the distance, no objection to the amended Notice of Deposition served on January 26, 2023 and setting Plaintiff’s deposition for April 21, 2023 at 200 Spectrum Center Drive, Suite 500, Irvine, CA 92618 was made. (Declaration of Hazel U. Poei, ¶¶ 3, 6, 13.) Therefore, Plaintiff waived any objection to any error or irregularity in the amended Notice of Deposition.

Even if the Court considered the distance, the location of the deposition complies with Code of Civil Procedure section 2025.250.

“Unless the court orders otherwise under Section 2025.260, 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.” (Code Civ. Proc. § 2025.250(a).)

Plaintiff’s counsel provides that Plaintiff currently resides in Fontana, California “approximately 50 to 70 miles from the defense counsel’s office.” (Declaration of Christopher K. Monelt, ¶ 3.) Thus, Plaintiff’s residence is within 75 miles from defense counsel’s office in Irvine, and is within Orange County, where the action is pending and within 150 miles of the Plaintiff’s residence such that it complies with the geographical limitations of Code of Civil Procedure section 2025.250(a).

At issue is whether Plaintiff is required to attend her noticed deposition in-person.

California Rules of Court (“CRC”), rule 3.1010, which was amended effective January 1, 2022, states in part: 

“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, e-mail, 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;

“(3) Any party or attorney of record may be physically present at the deposition at the location of the deponent with written notice of such appearance served by personal delivery, email, or fax, at least five court days before the deposition, and subject to Code of Civil Procedure section 2025.420. An attorney for the deponent may be physically present with the deponent without notice.”

(CRC, rule 3.1010(b).)

It also states, “[a] deponent must appear as required by statute or as agreed to by the parties and deponent.” (CRC, rule 3.1010(c).) CRC, rule 3.1010 additionally states, “[o]n motion by any person, the court in a specific action may make such other orders as it deems appropriate.” (CRC, rule 3.1010(d).)

Current Code of Civil Procedure section 2025.310, effective January 1, 2023, states in part:

“(a) At 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.

“(b) 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. 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.

“(c)  The procedures to implement this section shall be established by court order in the specific action or proceeding or by the California Rules of Court.

“(d)  An 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.”

(Code Civ. Proc. § 2025.310(a)-(d).)

While the language of CRC, rule 3.1010 and Code of Civil Procedure section 2025.310 indicate that other persons may appear remotely, the foregoing provides that Defendant or Defendant’s counsel may be physically present at the deposition at the location of the deponent/Plaintiff if written notice is given at least five court days before the deposition and subject to Code of Civil Procedure section 2025.420, such that a deponent is to attend a deposition in-person if so noticed accordingly.

Here, as stated above, notice of Plaintiff’s in-person deposition was given in January 2023, and Plaintiff’s counsel confirmed said deposition on March 12, 2023.

Plaintiff provides no authority to support that Plaintiff may simply choose to attend his/her deposition remotely; there is no showing that Plaintiff’s motion for protective order set to be heard in July concerns the present motion; and there is no basis presented for a remote deposition other than the distance and travel time which is not a sufficient basis under the present circumstances.

Based on the foregoing, the Court GRANTS Defendant’s motion to compel the deposition of Plaintiff to occur in-person at defense counsel’s office in Irvine, California. The parties to select a mutually agreeable date for the deposition to occur within 20 days of the date of this order.

Defendant to give notice.