Judge: Serena R. Murillo, Case: 20STCV20180, Date: 2022-10-17 Tentative Ruling

Case Number: 20STCV20180    Hearing Date: October 17, 2022    Dept: 29


Bertha Arellano Arzaga v. Nancy Donato

 

Motion to Compel Defendant’s Deposition and Request for Sanctions filed by Plaintiff Bertha Arellano Arzaga 

TENTATIVE

 

Plaintiff Bertha Arellano Arzaga’s motion to compel the deposition of Defendant is GRANTED. Defendant Nancy Donato is ordered to appear for deposition within 30 days of this order. Plaintiff’s request for sanctions is DENIED.

 

Legal Standard 

 

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

CCP section¿2025.450(a) provides:¿“If, 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, or to proceed with it, or to produce for¿inspection any document . . . described in the deposition notice, 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 . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450(a).) 

 

CCP section¿2025.450(b) provides:¿“A motion under subdivision (a)… shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿ (Id., § 2025.450(b).) 

  

Discussion

Plaintiff moves to compel Defendant’s deposition. Defendant’s deposition was scheduled for November 16, 2021. (Ramos Decl., ¶ 3.) However, defense counsel requested the deposition to take place on February 23, 2022 instead. (Id., ¶ 4.) On November 15, 2021, Defense counsel informed Plaintiff’s counsel that Defendant was recovering from a broken hip, and she was in no condition to physically sit through a deposition. (Id., ¶ 5). On February 17, 2022, Defendant formally objected to the February 23, 2022 deposition, indicating that she was not physically well enough to attend. (Id., ¶ 6.) On February 22, 2022, Defense counsel emailed Plaintiff a letter by Dr. Terry Ishihara, M.D. which indicated that Defendant is unable at this time to sit through a deposition. (Id., ¶ 10.) On February 22, 2022, Plaintiff’s Counsel informed Defense Counsel that Defendant was welcome to stand as she takes her deposition. (Id., ¶ 13.) However, meet and confer attempts were not successful at resolving the issue. Plaintiff is willing to accommodate Defendant’s injury by conducting a remote deposition, allowing Defendant to stand in her deposition, take as many breaks as she needs, and conducting the deposition over the course of several days.

Defendant argues in opposition that she is unavailable as a witness under Evidence Code section 240 due to physical or mental infirmity. She argues that she validly objected to the deposition notice due to her fragile health. A physician's note was also provided. (Dominguez Decl., Exh. A.) Defendant argues she is of senior age and has been experiencing various health issues which included a hip injury that led to the initial delays. Defendant argues there are now also other private health issues, which are believed to be dementia. (Id., ¶ 2.)

The burden of proof is on the party who objects to the proffered witness. (People v. Anderson (2001) 25 Cal.4th 543, 573.)

 

The Court notes that there is no physician declaration attesting to Plaintiff’s physical infirmity. The only evidence of her infirmity is her counsel’s representation, and a doctor’s note from February of 2022 only stating that she cannot sit through a deposition.  However, eighth months have passed since then. Moreover, Plaintiff is willing to accommodate Defendant’s condition by conducting a remote deposition, allowing Defendant to stand in her deposition, take as many breaks as she needs, and conducting the deposition over the course of several days. As such, the deposition should be limited in the manner provided above by Plaintiff.

 

As such, in light of the lack of evidence as to Defendant’s infirmity, the Court finds that the objection to the deposition notice based on Defendant’s infirmity was not valid. Plaintiff is entitled to take the deposition of Defendant, has properly served Defendant with a deposition notice, and Defendant’s objection was not valid. Thus, the motion is granted. Defendant is ordered to appear for deposition within 30 days of this order.

 

Sanctions

 

If a motion under CCP section¿2025.450(a) is granted, the court 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. (CCP section¿2025.450(g)(1).)

 

Plaintiff’s request for sanctions is denied as Defendant has acted with substantial justification and has made efforts to obtain a diagnosis note from Defendant’s physician addressing her current health and mental ability to be questioned at deposition.

 

Conclusion

 

Accordingly, Plaintiff’s motion to compel the deposition of Defendant is GRANTED. Defendant Nancy Donato is ordered to appear for deposition within 30 days of this order. Plaintiff’s request for sanctions is DENIED.

 

Moving party is directed to give notice.