Judge: Thomas D. Long, Case: 22STCV21340, Date: 2022-11-03 Tentative Ruling

Case Number: 22STCV21340    Hearing Date: November 3, 2022    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On June 30, 2022, Plaintiff Olivia Jimenez filed this action against Defendant Subaru of America, Inc. arising from Plaintiff’s purchase of an allegedly defective vehicle.

On August 11, 2022, Defendant noticed Plaintiff’s remote deposition for August 30, 2022.  (Bell Decl. ¶ 4 & Ex. A.)  On August 24, 2022, Defendant agreed to Plaintiff’s alternate date of September 6, 2022, and served an amended notice of deposition.  (Bell Decl. ¶¶ 6-8 & Exs. C-E.)  The next day, Plaintiff’s counsel requested a “Zoom capable” location in Perris, California for the deposition.  (Bell Decl. ¶ 9 & Ex. F.)  Defendant’s counsel later responded that a location in Perris would not be provided for the remote deposition, but as “a courtesy,” they offered a conference room in their office in Los Angeles.  (Bell Decl. ¶ 9 & Ex. F.)  Plaintiff’s counsel contended that Defendant was “required to provide a location.”  (Bell Decl. ¶ 10 & Ex. G.)  Defendant’s counsel offered to have a laptop and mobile WiFi hotspot delivered to Plaintiff’s residence to allow Plaintiff to attend the deposition remotely.  (Bell Decl. ¶¶ 10-11 & Exs. G-H.)

On August 29, 2022, Defendant’s counsel informed Plaintiff’s counsel that a Zoom link would be provided for the noticed and agreed-upon deposition date, and Defendant would take a certificate of non-appearance if Plaintiff failed to appear.  (Bell Decl. ¶ 12 & Ex. H.)  On August 29, 2022 at 5:41 p.m., Plaintiff served objections to the deposition notice.  (Bell Decl. ¶ 13 & Ex. I.)  On September 6, 2022, Defendant’s counsel provided Plaintiff’s counsel with the link for the remote deposition.  (Bell Decl. ¶ 14 & Ex. J.)  Plaintiff’s counsel confirmed their availability but contended that Defendant failed to provide a suitable location close to Plaintiff’s residence.  (Bell Decl. ¶ 14 & Ex. K.)

Neither Plaintiff nor her counsel appeared for the remote deposition on September 6, 2022.  (Bell Decl. ¶ 15 & Ex. L.)

On October 10, 2022, Defendant filed a motion to compel Plaintiff’s deposition.  The parties did not participate in an informal discovery conference, as required by Department 48’s procedures available on the Court’s website.

If a party fails to appear for a noticed deposition without serving timely and valid objections, the party seeking the deposition may move for an order compelling the deposition.  (Code Civ. Proc., § 2025.450, subds. (a)-(b).)  The court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, 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).)

Plaintiff argues that Defendant is engaging in gamesmanship by failing to provide a location near Plaintiff’s residence so that Plaintiff and her attorney could attend the remote deposition in the same room.  (Opposition at pp. 2-4.)  Plaintiff argues that “it is presumptuous to assume that any given plaintiffs’ home has a suitable space for a deposition to take place,” she is entitled to have her attorney physically present during the deposition, and it is a violation of her privacy to force her to host her attorney in her home for the deposition.  (Id. at p. 4.)

Any party may take a deposition by telephone, videoconference, or other remote electronic means, as long as it is properly noticed and the party seeking the deposition makes all arrangements for any other party to participate in the deposition in an equivalent manner.  (California Rules of Court, rule 3.1010(a).)  Defendant complied with this rule by making arrangements for all parties to participate in the deposition via remote video.  (See Bell Decl., Ex. J.)

An attorney for the deponent may be physically present with the deponent without notice.  (California Rules of Court, rule 3.1010(a).)  However, this is permissive on the part of the deponent.  Plaintiff cites no authority requiring that her attorney be physically present with her for a remote deposition, and there is no indication that Plaintiff’s counsel could not also attend the deposition remotely.

Additionally, the deposition of a natural person must be taken at a location “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, subd. (a).)  Defendant complied with this requirement by offering Plaintiff and her counsel the use of a conference room in Defendant’s counsel’s office at 1212 Wilshire Boulevard, Los Angeles, California.  (See Bell Decl., Ex. F.)  The Court takes judicial notice of the fact that this address is within Los Angeles County and is within 150 miles of Perris, California.  (Evid. Code, § 452, subd. (h); see also Opposition at pp. 2-3 [contending that Plaintiff would be “forced to travel over 80 miles” to the office].)  If the deposition were to be taken in-person, Defendant’s counsel’s office would be an allowable location.  The fact that it will instead be taken remotely does not make Defendant’s counsel’s offer of the office space unreasonable.

Accordingly, the motion to compel deposition is GRANTED.  Plaintiff must appear for her deposition within 21 days.

The request for sanctions is GRANTED IN PART.

The request for costs incurred for the September 6, 2022 deposition is denied, as Plaintiff objected in advance of the deposition and made it clear that she would not appear (see Bell Decl., Ex. K), so the costs incurred for the court reporter, interpreter, and certificate of non-appearance were not necessary.

The request for attorney fees and costs incurred in bringing this motion is granted in the amount of $1,260.00 ($1,200.00 attorney fees plus $60.00 filing fee [Bell Decl. ¶ 19]), to be paid to Defendant within 10 days.

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 3rd day of November 2022