| Frederico Paredez v. Michael Todd Williams | CASE NO. 112CV230995 | |
| DATE: 24 October 2014 | TIME: 9:00 | LINE NUMBER: 3 |
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 23 October 2014. Please specify the issue to be contested when calling the Court and counsel.
On 24 October 2014, the motion of defendant Michael Todd Williams (“Defendant”) to quash the deposition of Andy Marchky was argued and submitted. Plaintiff Frederico Paredez (“Plaintiff”) filed a formal opposition to the motion.
- Statement of Facts
This action arises out of a motor vehicle accident which occurred on 26 August 2010, at First Street and San Fernando Street in San Jose, California. Plaintiff alleges that Defendant was driving a sports utility vehicle while intoxicated when Defendant rear-ended his motorcycle as he was stopped at a stoplight, causing injury to his person and property.
On 23 August 2012, Plaintiff filed the operative complaint alleging a cause of action for negligence and claiming wage loss, loss of earning capacity, loss of use of property, property damage, hospital and medical expenses, and general damages.
This case is set for trial on 3 November 2014.
- Discovery Dispute
On 15 September 2014, Plaintiff served Andy Marchky (“Mr. Marchky”) with a deposition subpoena, ordering him to appear for deposition on 29 September 2014, in Columbus, Ohio. Plaintiff personally served Defendant with a deposition notice on 18 September 2014, advising that the deposition of Mr. Marchky was set for 29 September 2014. (See Pinelli Dec., Ex. A.) The deposition notice indicated that Mr. Marchky’s deposition would be conducted via video conference, with one video conference site located in Irvine, California and the other in Columbus, Ohio. (See id.)
On 22 September 2014, Plaintiff served Defendant via U.S. mail with an amended deposition notice, setting the deposition of Mr. Marchky for 2 October 2014. (See Pinelli Dec., Ex. B.) The deposition notice once again indicated that Mr. Marchky’s deposition would be conducted via video conference, with one video conference site located in Irvine, California and the other in Columbus, Ohio. (See id.)
Defendant’s counsel sent a meet and confer letter to Plaintiff’s counsel on 26 September 2014, objecting to Mr. Marchky’s 2 October 2014 deposition on the ground that it was improperly noticed. (See Pinelli Dec., Ex. C.) Defendant’s counsel asserted the subpoena that was served on Mr. Marchky was improper because it was “a California subpoena” and “a proper subpoena needs to be through an Ohio officer.” (See id.) Defendant’s counsel further asserted that the amended 22 September 2014 deposition notice was improperly served on Defendant because it gave Defendant only 10 days’ notice instead of the required 15 days’ notice. (See id.) Defendant’s counsel requested that Plaintiff’s counsel take Mr. Marchky’s deposition off calendar. (See id.) On the same date, Defendant also served Plaintiff with formal objections to Mr. Marchky’s deposition via U.S. mail and facsimile. (See Pinelli Dec., Ex. D.)
On 29 September 2014, Defendant filed the instant motion to quash the deposition of Mr. Marchky.
Plaintiff’s counsel replied to Defendant’s counsel’s meet and confer letter on 1 October 2014. (See Opp’n., Ex. A.) Plaintiff’s counsel advised that he sent out the amended 22 September 2014 deposition notice because his office was contacted by Mr. Marchky who requested that the original 29 September 2014 deposition be continued to accommodate his schedule. (See id.) Plaintiff’s counsel asserted that Defendant’s 26 September 2014 objection to the amended deposition notice was late because it was not served personally on Plaintiff three days prior to the deposition. (See id.) Plaintiff’s counsel advised that since Defendant’s formal objection to the deposition was defective, Plaintiff would proceed with the deposition of Mr. Marchky as noticed. (See id.)
On 10 October 2014, Plaintiff filed papers in opposition to the instant motion. Defendant filed a reply on 17 October 2014.
III. Discussion
Defendant moves to quash the deposition of Mr. Marchky in its entirety.
- Legal Standard
Upon motion reasonably made, the court may make an order quashing a deposition notice and/or deposition subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as it shall declare, including protective orders. (See Code Civ. Proc. §§ 1987.1, subd. (a), 2025.420, subd. (a), 2025.410, subd. (c).) In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (See Code Civ. Proc. § 1987.1, subd. (a).)
- Adequacy of the Notice Period
Defendant argues that the Court should quash the deposition of Mr. Marchky because the amended deposition notice that was served on him on 22 September 2014, setting Mr. Marchky’s deposition for 2 October 2014, was not served 15 days before the date set for Mr. Marchky’s deposition. Defendant asserts that Code of Civil Procedure section 2025.270, subdivision (a) states that a notice of deposition must be served at least 10 calendar days before the deposition date, and that time is extended by an additional 5 calendar days for mailing pursuant to Code of Civil Procedure sections 1013, subdivision (a) and 2016.050.
Plaintiff argues that Code of Civil Procedure section 2025.270 does not require him to serve “a notice of continuance of a deposition” within 10 calendar days of the deposition date “when the deposition itself was previously, timely noticed in compliance” with the statute. (Opp’n., p. 2:10-15.) Plaintiff further argues that Defendant’s formal objection to the deposition notice that was served on him on 26 September 2014, was untimely because it was served via U.S. mail and facsimile only 3 days prior to the original deposition date of 29 September 2014, and Code of Civil Procedure section 2025.410 requires personal service of an objection in such a situation.
Generally, a notice of deposition must be served at least 10 days before the date set for deposition. (See Code Civ. Proc., § 2025.270, subd. (a).) For deposition notices served by U.S. mail, service must be made an additional 5 calendar days before the date noticed for deposition. (See Code Civ. Proc., §§ 2016.050, and 1013, subd. (a).) In addition, Code of Civil Procedure section 2025.410, subdivision (a) provides that any party served with a defective deposition notice “waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least 3 calendar days prior to the date for which the deposition is scheduled.” Furthermore, if the objection is served exactly 3 days before the date noticed for the deposition, the objection must be personally served. (See Code Civ. Proc., § 2025.410, subd. (b).)
The amended deposition notice set Mr. Marchky’s deposition for 2 October 2014, but was served on Defendant via U.S. mail on 22 September 2014, only 10 calendar days before the date noticed for the deposition. As such, the deposition notice was not served on Defendant in a timely manner.
Moreover, Plaintiff’s argument that the 22 September 2014 amended deposition notice was served with sufficient notice because it is an amendment to the original 18 September 2014 deposition notice, which was timely served, is not well-taken. The amended deposition notice is distinct and separate from the original 18 September 2014 deposition notice, and Plaintiff cites no legal basis for the proposition that a prior timely deposition notice waives the timing requirements of Code of Civil Procedure section 2025.270 for subsequent notices.
Additionally, Defendant’s objection to the amended deposition notice has not been waived. Defendant served his objection to the amended deposition notice on 26 September 2014, which was 6 calendar days before the deposition date of 2 October 2014. Therefore, Defendant was not required to personally serve Plaintiff with his formal objection to the deposition notice and the service via U.S. mail was adequate.
Plaintiff’s argument that the original deposition date of 29 September 2014 should be used to determine whether personal service of Defendant’s formal objection to the deposition notice was required by Code of Civil Procedure section 2025.410 is without merit. As articulated above, the amended deposition notice is distinct and separate from the original 18 September 2014 deposition notice and provided a new deposition date of 2 October 2014. Plaintiff cites no legal authority providing that when a new deposition notice is served, the original deposition date should still be used to determine the date on which a formal objection to the amended deposition notice must be served.
Accordingly, Defendant’s objection to the sufficiency of the amended deposition notice under Code of Civil Procedure section 2025.270 is sustained and his motion to quash is GRANTED.[1]
- Defendant’s Request for Monetary Sanctions
For the first time in his reply papers, Defendant requests an award of monetary sanctions in the amount of $1,040 under Code of Civil Procedure section 2025.410, subdivision (d). Defendant’s request for monetary sanctions is defective for two reasons. First, he did not indicate in his notice of motion that he was requesting any type of sanctions whatsoever. (See Code Civ. Proc. § 2023.040 [a request for sanctions must be made in the notice of motion, identifying every person, party, and attorney against whom the sanction is sought, and specify the type of sanction].)
Second, in REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500, the rule was stated as follows: “This court will not consider points raised for the first time in a reply brief for the obvious reason that opposing counsel has not been given the opportunity to address those points”.
Accordingly, Defendant’s request for monetary sanctions is DENIED.
- Conclusion and Order
Defendant’s motion to quash the deposition of Mr. Marchky is GRANTED.
Defendant’s request for monetary sanctions is DENIED.
| ____________________________
DATED: |
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HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] The Court notes that Defendant also argues that the Court should quash Mr. Marchky’s deposition because the deposition subpoena that was served on Mr. Marchky was not served in accordance with Ohio law. As Defendant’s objection to the inadequacy of the notice period is sustained and the motion is granted on that basis alone, the Court does not reach the other issue raised by Defendant in his moving papers.
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