| Kent Borgman v. Insphere Insurance Solutions, Inc., et al. | CASE NO. 112CV232891 | |
| DATE: 31 October 2014 | TIME: 9:00 | LINE NUMBER: 7 |
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 30 October 2014. Please specify the issue to be contested when calling the Court and counsel.
On 31 October 2014, the motion of defendant Insphere Insurance Solutions, Inc. (“Defendant”) to compel plaintiff Kent Borgman (“Plaintiff”) to appear for deposition in Santa Clara County was argued and submitted. Plaintiff filed a formal opposition to the motion.
All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]
- Statement of Facts
This action arises from an employment dispute. In the second amended complaint, Plaintiff alleges that at all relevant times, he was a resident of Idaho working in California and worked for Defendant from 1999 to 2011. Throughout Plaintiff’s employment, Defendant allegedly violated various wage and hour laws. Plaintiff further alleges that from 2003 through 2009, he worked as the Divisional Manager of the offices in California, Nevada, and Idaho, and Defendant represented that he “owned” the offices he managed and required him to contribute his personal capital to operate those offices. Plaintiff alleges that he relied on Defendant’s representations by contributing approximately $1.6 million of his personal funds to run the California offices. On 16 October 2009, Defendant allegedly told Plaintiff that he never “owned” any office and refused to reimburse Plaintiff for his expenses. Plaintiff additionally alleges that in 2011, Defendant terminated him in retaliation for “supporting” four employees who asserted a sexual harassment claim against one of Defendant’s employees.
Plaintiff asserts causes of action for violations of Labor Code sections 204, 226, 226.7, 432.5, 510, and 2802, violation of Business and Professions Code section 17200, fraud in the inducement, negligent misrepresentation, conversion, accounting, and wrongful termination in violation of public policy.
- Discovery Dispute
On 20 August 2014, Defendant’s counsel sent an email to Plaintiff’s counsel, asking for Plaintiff’s availability to appear for deposition in late September or early October 2014. After meeting and conferring about the date of Plaintiff’s deposition, Plaintiff’s counsel advised that Plaintiff could appear for deposition on 4 November 2014.
Next, the parties’ counsel met and conferred with respect to the location of Plaintiff’s deposition. Defendant’s counsel initially expressed a willingness to take Plaintiff’s deposition in Idaho, but in an email dated 8 September 2014, he asked Plaintiff’s counsel whether Plaintiff would be amenable to appearing for deposition in California. The same day, Plaintiff’s counsel replied, advising that “Plaintiff cannot travel to California for the deposition.”
On 23 September 2014, Defendant’s counsel sent an email to Plaintiff’s counsel, stating that “after conferring with our client, we are requesting that you agree that the deposition take place in California where the suit was brought,” and “[i]f [counsel is] unable to agree to a location in California for the deposition, [then Defendant] will bring a motion for an order setting the deposition for a location in California.” Plaintiff’s counsel indicated that Plaintiff would be willing to appear for a deposition in California so long as Defendant paid for his travel expenses, but Defendant’s counsel rejected that offer. Ultimately, the parties’ counsel were unable to informally resolve the dispute as to whether Plaintiff should appear for deposition in California at his own expense.
On 3 October 2014, Defendant filed this motion to compel Plaintiff to appear for deposition in Santa Clara County.
Plaintiff filed an opposition to the motion on 22 October 2014.
On 24 October 2014, Defendant filed its reply.
III. Discussion
Defendant moves to compel Plaintiff to appear for deposition in Santa Clara County.
- Legal Standard
A party may take the oral deposition of a natural person or entity within the state of California. (Code Civ. Proc. [“CCP”], § 2025.010.) “Unless the court orders otherwise under [CCP s]ection 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is . . . 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.” (CCP, § 2025.250, subd. (a).)
CCP section 2025.260, subdivision (a) provides that the court has the discretion to order a deponent appear for deposition at a more distant location in California where the deposing party moves for “an order that the deponent attend for deposition at a place that is more distant.”
In determining whether to issue such an order, “the court shall take into consideration any factor tending to show whether the interests of justice will be served by requiring the deponent’s attendance at a more distant place,” including (1) whether the moving party selected the forum, (2) whether the deponent will be present to testify at trial, (3) the convenience of the deponent, (4) the feasibility of conducting the deposition by written questions or another discovery method, (5) the number of depositions sought to be taken at a more distant location, (6) the expense to the parties, and (7) the whereabouts of the deponent. (CCP, § 2025.260, subd. (b).)
- Analysis and Conclusion
It is undisputed that Plaintiff is a resident of Idaho. (See Plaintiff’s decl., at ¶ 3.)
In support of the motion, Defendant argues that the factors described in CCP section 2025.260, subdivision (b) weigh in favor of compelling Plaintiff to appear for deposition in California because Plaintiff selected Santa Clara County as the forum in which to litigate his claims and presumably will be available to testify at trial, Defendant needs to take Plaintiff’s oral deposition and does not plan to depose other witnesses at more distant locations, and deposing Plaintiff in Idaho would require Defendant to incur significant travel expenses.
Plaintiff opposes the motion on the ground that he is a resident of Idaho—not California—and CCP section 1989 precludes this Court from ordering him to appear for deposition in California. Plaintiff cites Toyota Motor Corporation v. Superior Court (2011) 197 Cal.App.4th 1107 (“Toyota”) in support of his position.
CCP section 1989 states:
“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 within the state at the time of service.”
The residency restriction set forth in CCP section 1989 applies to witnesses obligated to give testimony by deposition. (Toyota, supra, at pp. 1113.) Thus, “[CCP s]ection 2025.260 permits depositions more than 75 (or 150) miles from a deponent’s residence, but [CCP] section 1989 restricts a deponent from being required to attend a California deposition if the deponent is not a California resident.” (Id., at p. 1113, italics in original.)
In reply, Defendant first argues that the holding of Toyota is not binding because it conflicts with the holding in Glass v. Superior Court (1988) 204 Cal.App.3d 1048 (“Glass”), and the Court should follow the Glass decision because it “offers the more sensible and well-reasoned opinion that a [court] is vested pursuant to [CCP] section 2025.260 with the power to order a non-resident party to appear for deposition in California.” (Defendant’s Reply, at p. 2:13-20.)
The court in Glass held that a trial court may compel a non-resident party deponent to appear for a deposition in California pursuant to CCP section 2025.260. (Glass, supra, at pp. 1052-1053.) However, the Toyota decision includes a detailed analysis of the Glass decision and sets forth three reasons supporting that court’s decision to decline to follow the holding in Glass. (Toyota, supra, at pp. 1122-1124.)
First, the court explained that “the Glass court misconstrued the [California] Supreme Court’s language in” Twin Lock, Inc. v. Superior Court (1959) 52 Cal.2d 754, 760 (“Twin Lock”)—a decision that described the presence of the “[n]otwithstanding [CCP s]ection 1989” language in the 1959 version of CCP section 2019, subdivision (b)(2) to be “[o]f particular significance”—and thus the court refused to accept “the Glass court’s conclusion that former [CCP] section 2025, subdivision (e)(3), which lacks such language, is ‘virtually identical’ to the 1959 version of [CCP] section 2019, subdivision (b)(2).” (Id., at p. 1123, citing Twin Lock, supra, at p. 760.)
Second, the court noted that it was able to review the legislative history of the relevant statutes—which had not been available to the court in Glass—and “concluded that the omission of the ‘[n]otwithstanding [CCP s]ection 1989’ language in 1986 was intentional, and must be given effect.” (Id., italics in original.)
Third, the court “disagree[d] with the Glass court’s supposition that the Legislature determined that the “[n]otwithstanding [CCP s]ection 1989’ language was ‘superfluous’ in light of Twin Lock,” since “Twin Lock found that language to be important to its analysis” and “removing the language removes one of the underpinnings of Twin Lock and renders its discussion of the 1959 version of [CCP] section 2019, subdivision (b)(2) inapplicable.” (Id., at pp. 1023-1024, italics in original.) Lastly the court noted that the Glass decision “ha[d] been on the books for 22 years and ha[d] not been cited in any published decision.” (Id., at p. 1024.)
Accordingly, contrary to Defendant’s assertion, the holding in Toyota is more sensible and well-reasoned, and the Court therefore declines to follow the holding of Glass.
Next, Defendant insists that CCP section 1989 conflicts with CCP section 2025.260, and the Court should therefore disregard the residency restriction in CCP section 1989. This Court will decline to do so for two reasons.
First, this Court prefers to adhere to the doctrine of “verba cum effectu sunt accipenda”[2] and to the principle that the provisions of a text should be interpreted in a way that renders them compatible, not contradictory.[3] This Court is reluctant to interpret these two statutes in a manner that would render CCP section 1989 meaningless.
Second, “[t]here is simply no conflict between the plain language of [CCP] sections 1989 and 2025.260.” (See Toyota, supra, at p. 1113, italics in original.) Defendant’s contention is therefore unavailing.
In light of the foregoing, Plaintiff’s argument that the residency restriction set forth in CCP section 1989 precludes the Court from ordering a non-resident party to appear for deposition in California is well-taken. Since Plaintiff is a resident of Idaho, the Court lacks the authority to compel him to appear for deposition in California. (See CCP, § 1989; see also Toyota, supra, at pp. 1113 & 1125.)
Defendant’s motion to compel Plaintiff to appear for deposition in Santa Clara County is accordingly DENIED.[4]
- Conclusion and Order
Defendant’s motion to compel Plaintiff to appear for deposition in Santa Clara County is DENIED.
| ____________________________
DATED: |
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HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] “Each exhibit must be separated by a hard 8½ x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”
[2] “Words are to be taken as having an effect.”
[3] See Scalia and Garner, “Reading Law” (2012 Thomsen/West), §§ 26-27.
[4] Nothing in this Order precludes Defendant from taking Plaintiff’s deposition outside of California pursuant to the procedures set forth in CCP section 2026.010.
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