Judge Ronald F. Frank, Case 21STCV33265 2023-02-10 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV33265, Date: 2023-02-10 Tentative Ruling

Case Number: 21STCV33265 Hearing Date: February 10, 2023 Dept: 8

Tentative Ruling

HEARING DATE: February10, 2023¿

CASE NUMBER: 21STCV33265

CASE NAME: Doe v. Innovative Fertility Center, a California Registered Professional Medical Domestic Corporation, et al

MOVING PARTY: Defendants, Innovative Fertility Center and Mark J. Rispler, M.D.

RESPONDING PARTY: Plaintiff, Doe

TRIAL DATE: September 5, 2023

MOTION:¿ (1) Motion to Compel Deposition

(2) Monetary Sanctions request

Tentative Rulings: (1) Motion to Compel in-person Deposition is GRANTED, for a date to be discussed during the hearing. The deposition will occur after 2/28/23.

(2) Monetary sanctions are DENIED

I. BACKGROUND¿

A. Factual¿

Plaintiff Doe filed this action against Defendants Innovative Fertility Center, Mark J. Rispler (collectively “Defendants”), and Does 1-50 on September 9, 2021. On November 15, 2021, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants alleging the following causes of action: (1) Battery; (2) Sexual Battery; (3) Medical Negligence; and (4) Intentional Infliction of Emotional Distress.

Defendants now file a Motion to Compel the in-person deposition of Plaintiff, Doe. Defendants claim that prior to the subject deposition date in issue, December 20, 2022, Plaintiff’s deposition was noticed on three (3) prior occasions, January 21, 2022, August 16, 2022, and November 14, 2022.

On November 16, 2022, the Court conducted an IDC as to a different issue. Defense counsel states that during the November 16 hearing, the issue of plaintiff’s deposition was discussed and a date of December 20 was agreed upon. Defendant does not argue that the parties discussed the in-person versus remote appearance issue with the Court on November 16. The very next day, November 17, 2022, Defendants served a deposition notice on Plaintiff for December 20, 2022 at 10:00 a.m. The deposition was noticed to take place in defense counsel’s office in person (Declaration of Julia E. Murray (“Murray Decl.”), ¶ 3, Exhibit A.)

Defendants note that on November 22, 2022, Plaintiff’s counsel sent an email to defense counsel stating that his client would only appear by Zoom and not in person. (Murray Decl., ¶ 4, Exhibit B.) On November 22, 2022 Defendants’ counsel sent a meet and confer letter setting forth that the deposition was to be in person and why. Defendants also noted that Defense counsel also inquired as to the grounds upon which Plaintiff was asserting, she would not be in person. (Murray Decl., ¶ 5, Exhibit C.) Defendants assert that in response to the letter, Plaintiff’s counsel sent two back-to-back emails, one asserting they would only appear remotely, and then the second stating they would not appear at all and attempted to set parameters of the deposition. (Murray Decl., ¶¶ 6, 7, Exhibits D, E.) Nowhere in the meet and confer exchange was Emergency Rule of Court 11(a) mentioned by either side.

On November 23, 2022 defense counsel notes that it sent another meet and confer letter that defendants were entitled to take the deposition in person and that was the plan. (Murray Decl., ¶ 8, Exhibit F.) On December 15, 2022, Plaintiff served an objection to the deposition going forward in person. Defendants assert that on December 20, 2022, Plaintiff did not appear for deposition and a certificate of nonappearance was taken. (Murray Decl., ¶ 4, Exhibit H.)

B. Procedural

On January 17, 2023, Defendants filed this Motion to Compel Deposition of Plaintiff. On January 30, 2023, Plaintiff filed an opposition. On February 3, 2023, Defendants filed a reply brief.

¿III. ANALYSIS ¿

A. Legal Standard

A party may, upon proper written notice, obtain discovery by taking the oral deposition of any natural person, organization, partnership, association, or governmental agency. (Code Civ. Proc. §§ 2025.010, 2025.220.) A party deponent can be required to attend a deposition by service of a deposition notice on the party's attorney. (Code Civ. Proc. § 2025.280, subd. (a).) A resident party organization with a designated principal executive or business office in California can be required to produce a qualified person to testify on its behalf for a deposition either (1) within 75 miles of the organization's designated office, or (2) in the county where the case is pending and within 150 miles of the organization's designated office. (Code Civ. Proc. § 2025.250, subd. (b).) “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 … A deponent must appear as required by statute or as agreed to by the parties and deponent.” (Cal. Rules of Court, rule 3.1010(b)–(c) [emphasis added].)

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, … without having served a valid objection …, fails to appear for examination, … the party giving the 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, subd. (a).)

Plaintiff argues that Emergency Rule of Court 11 empowers a deponent to refuse to appear in person for a deposition. The Court disagrees with Plaintiff’s reading of the emergency rule. The EROCs were enacted in early 2020 in response to the COVID-19 pandemic. Emergency Rule 11, now codified as Code of Civil Procedure section 2025.310, enables a deponent or the deposing party to elect to have the court reporter attend the deposition by telephone or other remote electronic means. EROC 11 and Section 2025.310 thus authorize the deponent and the court reporter to be in different locations during the deposition. Similarly, a party or counsel of record may attend a deposition in person or remotely, i.e., they can elect to be physically present at the deposition, either at the same location as the deponent or a a remote location. (Code Civ. Proc., § 2025.310(b).) But the election of a non-deponent party or her/his counsel to appear remotely “does not waive any other provision of [Section 2025], including, but not limited to, provisions regarding the time, place, or manner in which a deposition shall be conducted.” (Id. § 2025(d)(emphasis added.) The Legislature thus made clear that regardless of whether the court reporter, counsel of record, or a non-deposed party desired to appear remotely, nothing it the EROC nor the recently amended statute affected the right of the deposing party to require an in-person attendance at her or his deposition.

Absent an agreement between the parties, the deponent is required to appear at the location stated in the deposition notice. (Cal. Rules of Court, rule 3.1010(c).) CCP section 2025.250, entitled “Location of Deposition,” states that the deposition of a natural person shall be taken at a location that is at the option of the party giving notice of the deposition. Absent a protective order or agreement of the parties to the contrary, the deposing party gets to choose the place where the deponent must appear and give a deposition. Were the Court to treat Plaintiff’s opposition papers as a quasi motion for a protective order, the Court would deny the motion for failure to demonstrate good cause.

Here, the noticed location was at defense counsel’s office of Reback, McAndrews, Blessey at 1230 Rosecrans Avenue, Suite 450, Manhattan Beach, California 90266. Because the parties could not agree to modify the deposition location, Plaintiff was required to appear in person for the deposition as noticed.

Based on the above, Defendants’ motion to compel the in-person deposition of Plaintiff is GRANTED.

B. Sanctions

If the Court grants a motion to compel a deposition, it “shall impose a monetary sanction … in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2025.450, subd. (g)(1).)

Here, Defendants assert that they have noticed the Plaintiff’s deposition four (4) times now. Additionally, Defendants assert that Plaintiff did not show up for the last noticed deposition on December 20, 2022. Defendants counsel, seek attorneys’ fees incurred to date in the total amount of $2,187.50, plus the cost of the court reporter and the non-appearance certificate/transcript was $358.35, and filing costs of Defendants’ motion was $60. The Court finds that monetary sanctions are not warranted under Plaintiff’s arguably good faith but mistaken belief that the Emergency Rules of Court and the ongoing COVID state of emergency justified his refusal to present Plaintiff for an in-person deposition.