Judge: Thomas D. Long, Case: 21STCV16031, Date: 2023-03-30 Tentative Ruling

Case Number: 21STCV16031    Hearing Date: March 30, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On April 28, 2021, Plaintiff Jorge Pelayo filed this action against Defendants Star Fisheries Inc. (“Star”), Deanne Inman, and John Swain (collectively, “Defendants”).

On February 25, 2022, Star served an amended notice of deposition on Plaintiff, and on March 21, 2022, Plaintiff served objections stating that his counsel would be in trial in another case and was unavailable on the deposition date.  (Stipulation, Ex. A [“Vidal Decl.”] ¶¶ 5-7 & Exs. 2, 9; see id. ¶ 10.)

On May 12, 2022, the parties participated in an Informal Discovery Conference, where Plaintiff agreed to appear for a deposition in July 2022.  The same day, Star served a second amended notice of Plaintiff’s deposition, noticing an in-person deposition date of July 14, 2022.  (Vidal Decl. ¶ 19 & Ex. 4.)  On July 7, 2022, Plaintiff served objections to the in-person deposition set to occur in Phoenix, Arizona.  (Vidal Decl. ¶ 20 & Ex. 17.)  Plaintiff objected because the deposition was originally scheduled as a Zoom deposition, and “Plaintiff and Plaintiff[’s] counsel will not appear in person due to the pandemic, risk of exposure to Covid and the location is too remote.”  (Vidal Decl., Ex. 17 at p. 1.)

On July 27, 2022, Defendants’ counsel asked Plaintiff’s counsel for deposition dates in August.  (Vidal Decl. ¶ 24 & Ex. 20.)  On August 11, 2022, Defendants’ counsel suggested dates for an Informal Discovery Conference.  (Vidal Decl. ¶ 26 & Ex. 22.)  Plaintiff’s counsel did not respond, so Defendants’ counsel reserved an Informal Discovery Conference for October 7, 2022.  (Vidal Decl. ¶¶ 26-27 & Ex. 23.)  The Court rescheduled the Informal Discovery Conference several times before vacating it in accordance with the Court’s new policies of no longer hearing IDCs.  (Vidal Decl. ¶¶ 28, 30.)  During that time, on November 23, 2022, Defendants’ counsel sent Plaintiff’s counsel another letter with a proposed date for a Zoom deposition.  (Vidal Decl. ¶ 29 & Ex. 27.)

On March 6, 2023, Defendants filed a Motion to Compel Plaintiff’s Deposition with a Stipulation.  Under the Court’s First Amended General Order for electronic filing, the table of contents and all attachments, including exhibits, must be bookmarked.  (General Order No. 2019-GEN-014-00, at ¶¶ 6(b)-(d); California Rules of Court, rule 3.1110(f)(4).)  Defendants’ 211-page Stipulation does not comply with these requirements because it does not contain any working bookmarks.  If Defendants continue to electronically file noncompliant documents, the Court may strike the filings or issue sanctions.

On March 17, 2023, Plaintiff filed an opposition.  The Court denies Defendants’ request to strike the opposition (Reply at pp. 2-3) because Defendants’ moving papers provide sufficient grounds to deny the motion, regardless of any opposition.

If a party to the action fails to appear for or proceed with an examination without making a valid objection under Section 2025.410, the party noticing the deposition may move to compel the deponent’s attendance and testimony.  (Code Civ. Proc., § 2025.450, subd. (a).)  Section 2025.410 provides for written objections to a deposition notice “that does not comply with Article 2 (commencing with Section 2025.210).”  (Code Civ. Proc., § 2025.410., subd. (a).)

Plaintiff’s March 21, 2022 objection was due to his counsel’s unavailability when engaged in another trial.  This is not a valid objection under Section 2025.410.  However, the dispute about these objections was already resolved at the May 12, 2022 IDC.    Although Plaintiff agreed to appear for a deposition in July 2022, the Court did not order it.

The only other deposition notice was served on May 12, 2022, the same day as the IDC, for a July 14, 2022 in-person deposition in Phoenix, Arizona.  Plaintiff validly objected to an in-person deposition occurring during the COVID pandemic and in another state.  Among the grounds for an objection due to noncompliance with Article 2 is a deposition that is not taken “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, subd. (a); see Complaint ¶ 18 [“Plaintiff and Defendants, and each of them, are or were residents of the County of Los Angeles and/or conducted business throughout Los Angeles County”].)  The Court judicially notices the fact that Phoenix, Arizona is not in Los Angeles County and is more than 75 miles from Plaintiff’s alleged residence in Los Angeles County.

Accordingly, Plaintiff made a valid objection under Section 2025.410 (for a deposition notice that did not comply with Section 2025.250, within Article 2), and there is no ground for compelling Plaintiff’s attendance and testimony.  (See Code Civ. Proc., § 2025.450, subd. (a).)  Although Defendants contend that Plaintiff’s counsel is not cooperating with providing dates for scheduling a deposition, that is not a ground for a motion to compel deposition.

The Motion to Compel Deposition is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 30th day of March 2023