Irina Sheyko vs. Victor Tikhomirov

Nature of Proceeding: Motion to Compel Deposition

Filed By: Gavrilov, Ognian

Defendant Oleysa Mysin’s motion to compel Plaintiff Irina Sheyko’s deposition is
denied.

Defendant seeks to compel Plaintiff, a Pennsylvania resident, to attend a deposition in
California after Plaintiff failed to appear for her deposition. Defendant argues that
Plaintiff waived any objection to the location of the deposition by failing to timely object.
The Court disagrees.

Ordinarily, the deposition of a natural person who is a party to an action must be taken
at a place that is, at the option of the person 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
(a)). However, on motion accompanied by a declaration stating facts showing a
reasonable and good-faith attempt at an informal resolution of each issue presented by
the motion, the court in its discretion may order that a natural person who is a party to
the action or an officer, director, managing agent, or employee of a party attend for
deposition at a place that is further than the distance permitted under Section
2025.250(a) of the Code of Civil Procedure (Code Civ. Proc. § 2025.260). Such motion
is not made here; it is merely asserted that there has been a waiver by failure to object
based on plaintiff’s residency. Defendant has not made the required showing under the
statute.

As noted, the deposition of a natural person inside California is required to take place
“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.” (CCP § 2025.250.) Here,
given that Plaintiff is a Pennsylvania resident, the only question is whether she waived
any objection to having her deposition in California by failing to object to the location in
writing within three days pursuant to Code of Civil Procedure § 2025.410(a). The
Court finds that she did not as the deposition notice was void on its face.

As seen from relevant case law, an out of state witness, including a party to an action,
cannot be compelled to attend a deposition in California. ( Toyota Motor Corp. v.
th
Superior Court (2011) 197 Cal.App.4 1107, 1113.) Indeed, the geographical reach of
a deposition notice in California is limited by Code of Civil Procedure § 1989 which
states that a “witness…is not obliged to attend as a witness before any court, judge,
justice, or any other officer, unless the witness is a resident of the state at the time of
service.” (CCP § 1989.) “As we have already noted, sections 1989 and 2025.250 are
not at all inconsistent and can easily have concurrent operation. They yield a clear,
coherent scheme that furthers the Legislature’s intent to spare deponents from
traveling long distances. Under it, a trial court can override the limitations set out in
section 2025.250 but cannot override section 1989.” ( Toyota Motor Corp., supra, at
1103.) Even a court order compelling a witness to appear beyond the limits of section
1989 is void. (Prisch v. Superior Court (1959) 52 Cal.2d 889.) A notice to attend that
exceeds the limits of section 1989 is “void on its face” and no objection is required. (
Amoco Chemical Co. v. Certain Underwriters at Lloyd’s of London (1995) 34 Cal.App.4
th 554, 559 [discussing trial subpoenas].) Here, given that the notice of deposition
exceeded the geographical limits of CCP §§ 1989 and 2025.250 it was void on its face and no objection was required. Plaintiff is correct that she cannot be compelled to
attend a deposition in California and is entitled to insist that her deposition take place
in Pennsylvania.

In reply, Defendant’s counsel concedes that a witness who does not reside in
California at the time he or she is served with a deposition notice cannot be compelled
to attend a deposition in California. He declares that he would have never brought the
motion had Plaintiff raised the CCP § 1989 residency limitation prior to the deposition
and verified that she resided in Pennsylvania. He asks the Court to summarily deny
his motion and both parties’ requests for sanctions. Alternatively he argues that if the
Court reaches the merits, the Court determine that Plaintiff did not provide competent
evidence that she actually resides in Pennsylvania. The Court rejects Defendant’s
argument that Plaintiff did not submit competent evidence regarding her residence.
While Plaintiff did not submit a declaration, her counsel declared that Plaintiff is a
resident of Pennsylvania and has been for over 10 years. (Vorobets Decl. ¶¶ 10-11.)
This is sufficient for purposes of this motion as there is no genuine dispute that Plaintiff
is in fact a Pennsylvania resident. In sum, the motion is denied.

Defendant’s request for sanctions is denied as the motion was denied. Plaintiff’s
request for sanctions is granted on the basis that Defendant failed to meet and confer
with Plaintiff to inquire about the reasons for her nonappearance at the deposition prior
to filing the instant motion as required by CCP § 2025.450(b)(2). “Nothwithstanding
the outcome of a particular discovery motion, the court shall impose a monetary
sanction ordering that any party or attorney who fails to confer as required pay the
reasonable expenses, including attorney’s fees, incurred by anyone as a result of that
conduct.” (CCP § 2023.020.) While Defendant’s counsel discussed the issues before
the deposition, Defendant’s counsel proceeded with the deposition and never
contacted Plaintiff’s counsel to inquire as to the reason for Plaintiff’s non-appearance
as specifically required by § 2025.450(b)(2) prior to filing the motion. However, the
amount of sanctions requested by Plaintiff for this fairly straightforward opposition is
entirely unreasonable ($4,279 based on almost 12 hours of time billed by two different
attorneys). Instead, Defendant shall pay to Plaintiff a monetary sanction in the amount
of $750 ($250/hr x 3 hrs). The monetary sanction is to be paid on or before December
13, 2013. If the sanction is not paid by that date, Plaintiff may prepare for the court’s
signature a formal order granting the sanction, which may be enforced as a separate
judgment. ( Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

This minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.