Case Number: BC648111 Hearing Date: August 22, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO QUASH DEPOSITION NOTICE OF SALVATORE SCORZA AND REQUEST FOR MONETARY SANCTIONS; MOTION DENIED AS MOOT

On January 25, 2017, Plaintiff Jessica Janos (“Plaintiff”) filed this action against Defendants Amayla Baghdasaryan and Tamara Aboyan (collectively, “Defendants”) for injuries sustained in a September 4, 2015 automobile accident. On June 20, 2018, Plaintiff served a Notice of Taking Deposition of Salvatore Scorza (“Scorza”) for July 9, 2018. Scorza was a witness to the accident and gave a statement to police at the scene. An amended notice was served setting the deposition for July 10, 2018 in Myrtle Beach, South Carolina. (Declaration of Victoria A. Silcox, ¶ 4.) Defendants objected on grounds Plaintiff failed to comply with Rule 28 of the South Carolina Judicial Department. (Silcox Decl., ¶¶ 6, 7.) After meeting and conferring, Plaintiff’s counsel would not withdraw the deposition notice. (Silcox, ¶ 8.) Defendants move to quash the deposition notice and to compel monetary sanctions.

Any party may obtain discovery by taking an oral deposition in another state of the United States. The procedures for taking oral depositions in California apply to an oral deposition taken in another state. (Code of Civ. Proc., § 2026.010, subd. (a).) However, if the deponent is not a party or a party-affiliated witness, a party serving a deposition notice under this section shall use any process and procedures required and available under the laws of the state where the deposition is to be taken to compel the deponent to attend and to testify. (Code of Civ. Proc., § 2026.010, subd. (c).)

Any party served with a non-compliant deposition notice waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served. (Code of Civ. Proc., § 2025.410, subd. (a).) If an objection is made three calendar days before the deposition date, the objecting party shall personally serve the objection. (Code of Civ. Proc., § 2025.410, subd. (b).)

On June 29, 2018, Defendant served an objection to the deposition notice on grounds Plaintiff did not comply with the rules for taking an oral deposition in South Carolina, which require an attorney licensed to practice law in South Carolina or the clerk of the court to issue a subpoena compelling the attendance of the witness, and the filing of a certified copy of a mandate, writ, or commission issued by a court of record directing that the deposition be taken or a certified copy of a written agreement that the deposition be taken. On July 3, 2017, this Motion to quash was filed.

Plaintiff argues that this Motion to quash was prematurely filed because upon receipt of Defendant’s objection, Plaintiff’s counsel promptly responded on July 3 that the July 10 deposition would be taken off calendar. After the July 10 deposition was taken off calendar, Plaintiff personally served both a California subpoena and a South Carolina subpoena on Scorza. Defendant objected because the two subpoenas had different dates and times. Although Scorza said he was not confused and would appear on July 14th for the deposition, Defendant continued to object and the deposition was taken off calendar.

The subject deposition notice has been withdrawn. Accordingly, the Motion to quash is denied as MOOT. The only remaining issue is monetary sanctions. Both parties seek monetary sanctions.

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code of Civ. Proc., § 2025.410, subd. (d).)

The Court disagrees this Motion was prematurely filed. “In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.” (Code of Civ. Proc., § 2025.410, subd. (c).) Given the approaching deposition date, Defendant was entitled to file this Motion to quash to stay the deposition pending determination of this motion.

However, there was not substantial justification to continue to object to Scorza’s deposition after Plaintiff took the first deposition off calendar and served a California and South Carolina subpoena. While the two subpoenas listed a different date and time, it appears this could have been informally resolved by meeting and conferring, especially where Scorza confirmed he would appear for the July 14 deposition in South Carolina.

In light of the foregoing, the Court finds both parties acted with substantial justification in bringing and opposing this Motion to quash. Both requests for monetary sanctions are DENIED.

Moving party to give notice.