Case Number: BC622991 Hearing Date: March 06, 2018 Dept: A

# 9. Gaston Procopio v. Nova Ortho-Med Inc., et al.

Case No.: BC622991

Matter on calendar for: Motion to compel (2)

Tentative ruling:

I. Background

In this personal injury action arising from Plaintiff Gaston Procopio’s alleged fall from a portable commode made by Defendant Nova Ortho-Med, Inc., Plaintiff resides in Spain, is indigent, and cares for his sick elderly mother in Spain. (December 14, 2017 Minute Order.)

The parties participated in an unfruitful Informal Discovery Conference on January 5, 2018.

Defendant moves to compel (1) Plaintiff’s deposition in Los Angeles (or make Plaintiff pay for Defendant’s Spain trip); and (2) “production of documents without objection” at the deposition.

II. Analysis

A. Objections

The Court need not rule on Plaintiff’s Objections because they are immaterial to the Court’s ruling on this motion.

B. Motion to compel production of documents at deposition

The Court denies without prejudice the motion to compel “production of documents without objection” because (1) Defendant failed to file a separate statement as required by CRC, Rule 3.1345(5); (2) Defendant’s notice of deposition was defective under CCP § 2025.250(a) (discussed below), which rendered the demand to produce documents defective; and (3) Apparently electing to focus on compelling Plaintiff to travel to LA, Defendant failed to substantively brief this motion to compel production of documents.

C. Motion to compel Plaintiff’s deposition in LA (or make Plaintiff pay for Defendant’s Spain trip)

This motion to compel relies on CCP §§ 2025.240, 2025.420, and 2025.260. CCP § 2025.250 states the general rule: “[U]nless the court orders otherwise under Section 2025.260,” a deposition must take place within 75 miles of the deponent’s residence, or if the deposition is within the county in which the action is pending, within 150 miles of the deponent’s residence. “[A] trial court cannot order a nonresident to appear at a California deposition.” (Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1125.)

CCP § 2025.260 allows a party to take the deposition of “a natural person who is a party to the action… at a place that is more distant that than permitted under Section 2025.250” upon a noticed motion and a meet and confer declaration (these procedural requirements have been satisfied). The Court has discretion to grant or deny this motion under CCP § 2025.260(b), but must “take into consideration any factor tending to show whether the interests of justice will be served by requiring the deponent’s attendance at the more distant place…” CCP § 2025.260(b)(1)-(7) suggest various factors, including whether the moving party selected the forum, the convenience of the deponent, the expense to the parties, and the feasibility of using a discovery method other than a deposition.

Here, Plaintiff already has demonstrated that he resides in Spain, is indigent, and cares for his sick elderly mother in Spain. (December 14, 2017 Minute Order.) These are significant factors under CCP § 2025.260(b). Moreover, CCP § 2025.310 allows a deposition to be conducted by phone or “other remote electronic means.” While Defendant no doubt would prefer an in-person deposition, Defendant has failed to articulate why a video deposition via Skype (or another teleconferencing method) would be ineffective or insufficient.

Defendant’s other arguments (for example, that Plaintiff’s claim of indigence is “unconfirmed,” that Plaintiff is already going to attend the trial, and that Plaintiff himself chose this LA forum) do not persuade the Court that it is appropriate to compel an indigent Plaintiff to pay to attend a deposition in LA, or to pay Defendant’s travel costs.

The Court denies the motion.

III. Ruling

The Court denies without prejudice the motion to compel “production of documents without objection.”

The Court denies with prejudice this motion to compel Plaintiff’s deposition in Los Angeles (or to issue a protective order obligating Plaintiff to pay for Defendant’s Spain travel expenses).