Judge: Theresa M. Traber, Case: 21STCV28269, Date: 2023-07-10 Tentative Ruling
Case Number: 21STCV28269 Hearing Date: September 12, 2023 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: September 12, 2023 TRIAL DATE: NOT
SET
CASE: Laura A. Lehan v. Greggory G. Tank, et
al.
CASE NO.: 21STCV28269 
MOTION
TO REQUIRE DEFENDANT TO ATTEND DEPOSITION IN PERSON IN LOS ANGELES COUNTY
MOVING PARTY: Plaintiff Laura A. Lehan, in pro per.
RESPONDING PARTY(S): Defendant Greggory
G. Tank
CASE
HISTORY:
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a breach of contract action. Plaintiff claims that Defendant
agreed to permit Plaintiff to reside at a piece of property in exchange for
Plaintiff caring for Defendant’s personal needs as his helpmate and life
partner.
Plaintiff moves for leave to take
the deposition of Defendant/Cross-Complainant Greggory Tank in person in Los
Angeles County.
TENTATIVE RULING:
Plaintiff moves for leave to take
the deposition of Defendant/Cross-Complainant Greggory Tank in person in Los
Angeles County.
The location where a deposition may
take place is governed by Code of Civil Procedure section 2025.250. This
section provides, in relevant part:
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).) A party may move for an
order requiring a party deponent to appear in person at a deposition that is
more distant than is permitted under this section. (Code Civ. Proc. §
2025.260.) The Court’s discretion to issue such an order is limited, however,
by Section 1989, which states that “[a] witness, including a witness specified
in subdivision (b) of Section 1987, is not obliged to attend as a witness
before any court, judge, justice or any other officer, unless the witness is a
resident within the state at the time of service.” (Code Civ. Proc. § 1989; Toyota
Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 113.) Section
1989 applies to in-person attendance of depositions. (Id.) Under
California law, a “resident” of the state includes “(1) [e]very individual who
is in this state for other than a temporary or transitory purpose” and “(2) [e]very
individual domiciled in this state who is outside the state for a temporary or
transitory purpose.” (Rev. & Tax Code § 17014.)
Here, by
Plaintiff’s own admission in her moving papers, the defendant whom she seeks to
depose alternates between living in Arizona and North Dakota. Although
Plaintiff claims that Defendant pays property taxes in California, she offers
no evidence of this contention, nor does she offer any evidence that Defendant
has had ongoing contacts with this state other than defending this case since the
initial Complaint was filed. Thus, it does not appear that the Court has
authority to grant Plaintiff the relief sought.
Plaintiff’s
Motion to Require Defendant Attend Deposition in Los Angeles County is
therefore DENIED.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: September 12, 2023 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@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.