Case Name: Manuel Vasquez v. BBBB Bonding Corporation
Case No.: 2015-1-CV-286166

This action arises out of a wage and hour dispute, and Plaintiff’s alleged wrongful termination. Plaintiff Manuel Vasquez (“Plaintiff”) was employed by Defendant BBBB Bonding Corporation (“Defendant”) as a licensed bail agent from approximately March 31, 2015 to June 29, 2015. (Fourth Amended Complaint (“4AC”), ¶ 13.) During his employment, Plaintiff allegedly complained to Defendant regarding its practice of unlawfully falsifying bail bonds with his signature. (Id. at ¶¶ 14-15.) Defendant refused to stop its unlawful conduct and constructively terminated Plaintiff as a result of his complaints. (Id. at ¶ 16.)

Based on the foregoing, Plaintiff filed the operative 4AC against Defendant on February 2, 2017, alleging causes of action for: (1) failure to furnish accurate wage statements in violation of Labor Code section 226, subdivision (a); (2) failure to maintain copies of accurate wage statements in violation of Labor Code section 226, subdivision (a); (3) failure to provide written notice at time of hiring in violation of Labor Code section 2810.5; (4) retaliation; and (5) wrongful termination.

Currently before the Court is Defendant’s motion to compel Plaintiff to appear for a second session of his deposition and to produce documents. Plaintiff opposes the motion, arguing that the only deposition notices he received were both defective.

The first deposition notice issued by Defendant on December 28, 2018 (which Defendant refers to as the “original” notice) attempted to require Plaintiff (who resides in Modesto, CA) to appear for deposition in San Francisco, CA on January 14, 2019. This nine-page notice included a request for documents to be produced at the deposition and a proof of service (signed by Defense Counsel Jeffrey Cohen under penalty of perjury) indicating service by overnight delivery on December 28, 2018. (See exhibit A to the Declaration of Jeffrey Cohon (“Cohon Decl.”).) This notice (and the accompanying request for documents) was invalid on its face as a court order based on a showing of good cause (and usually issued after a hearing on a noticed motion) is required before any natural person may be deposed more than 75 miles from his or her residence if being deposed outside the county where the action is pending. (See CCP §§2025.250(a), 2025.260(a).) Defendant obviously was always aware that this action is pending in Santa Clara County rather than San Francisco County, and thus had to know that—absent an express agreement—Plaintiff could not be compelled to travel more than 75 miles from his residence for a deposition outside Santa Clara County.

Plaintiff informed Defendant of the invalidity of the first deposition notice via email on January 2, 2019. (See exhibit C to the declaration of Plaintiff’s Counsel Nicholas Scardigli (“Scardigli Decl.”).) In a responding email on January 3, 2019, Defense Counsel Cohon informed Mr. Scardigli that Defendant would issue an “Amended Notice” which would be sent by overnight mail. (See ex. C to the Cohon Decl.) Mr. Cohon notably made no mention of any other method of service other than overnight delivery in his email to Plaintiff’s Counsel.

This second deposition notice (which Defendant continually refers to as an “amended” notice) changed the location of the deposition to San Jose, California but attempted to retain the January 14, 2019 date for the deposition. This second notice was otherwise essentially identical to the first—a nine page document including a request for production of documents and a proof of service signed by Defense Counsel Cohen under penalty of perjury, this time stating that the service was made via overnight delivery on January 3, 2019. (See ex. D to the Cohon Decl. & ex. D to the Scardigli Decl.) Contrary to the argument made in Defendant’s motion the second notice could not “amend” or “relate back” to a prior invalid notice. The second notice had to independently comply with all procedural requirements, including notice requirements.

A notice of deposition must be served at least 10 days before the date set for deposition. (CCP §2025.070(a).) Various extensions of time apply depending on the method of service. Service by overnight delivery adds two court days to the notice requirement. (See CCP §§2016.050, 1013(c).) Therefore, as served via overnight mail on January 3, 2019 for a deposition scheduled for January 14, 2019, the second deposition notice was plainly invalid due to insufficient notice.

Plaintiff does not dispute receiving the second deposition notice via overnight delivery. Plaintiff objected to the notice as untimely for a January 14, 2019 deposition date but inexplicably waited until January 9, 2019 to submit objections to Defendant, and then did so only by overnight mail. (See ex. E to the Scardigli Decl. & ex. F to the Cohon Decl.)

Defendant then asserted for the first time in an email to Plaintiff’s Counsel sent at 4:53 p.m. on January 11, 2019 (see ex. G to the Cohon Decl. & Scardigli Decl. at ¶8), that service of the second notice had been properly made on Plaintiff via personal service on Plaintiff Counsel’s office on January 4, 2019. Attached to the email was a copy of the purported proof of service. That document (included in ex. G to the Cohon Decl.) is a one-page form with an illegible signature, unattached to any deposition notice or request for production of documents, which asserts that a copy of the “amended” notice was delivered to Plaintiff Counsel’s offices by “Victor Moreno,” a registered California Process Server, at 10:17 a.m. on January 4, 2019.

Plaintiff’s Counsel disputes that any such service took place and states that the first he heard of such service was Mr. Cohon’s January 11th email. (See Scardigli Decl. at ¶¶3 & 8.) Defendant argues that the one page form ends the debate as it gives rise to a presumption the personal service took place on January 4, 2019 pursuant to Evidence Code §647.

The presumption created by Evidence Code §647 is simply a presumption affecting the burden of producing evidence. “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Evidence Code §604 [Court’s emphasis]. See also Coffey v. Shiomoto (2015) 60 Cal.4th 1198 [Under a rebuttable presumption, if evidence sufficient to negate the presumed fact is presented, the presumption disappears and has no further effect]; Rancho Santa Fe Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 882 [when opposing party produces evidence casting doubt on the truth of the presumed fact, the other party is no longer aided by that presumption and “the presumption disappears, leaving it to the party in whose favor it initially worked to prove the fact in question.”])

The Court finds Plaintiff Counsel’s declaration to be sufficient evidence to negate/dispel the presumption that created by the one page proof of service that the second deposition notice was served via personal service on January 4, 2019.

The Court notes that Defendant has submitted evidentiary objections to Plaintiff Counsel’s declaration with its Reply. As Defendant has not cited any authority for the submission of evidentiary objections in the context of a motion to compel deposition, the Court will not rule on these objections.

The Court finds that Defendant has not established that personal service of the second deposition notice took place on January 4, 2019 and finds that the only deposition notices indisputably served on Plaintiff (via overnight delivery on December 28, 2018 and January 3, 2019) were both invalid. Defendant’s motion to compel deposition is therefore DENIED.

As the Court denies Defendant’s motion, Defendant’s request for monetary sanctions is DENIED.

Plaintiff’s request for monetary sanctions is DENIED as well. Apart from the entirely irrelevant discussion of the parties’ past discovery disputes (present in Defendant’s papers as well), Plaintiff’s opposition is based on the simple assertion that both of the deposition notices Plaintiff acknowledges service of were facially invalid, the first for non-compliance with CCP §§2025.250(a) & 2025.260(a), the second for non-compliance with CCP §2025.070(a). To make this argument did not require 8.3 hours of counsel’s time at $450/hour as stated in Plaintiff Counsel’s declaration. The Court therefore finds that the imposition of the requested monetary sanctions against Defendant would be unjust under the circumstances. (See CCP §§2023.030(a); 2025.0450(g).)

While the present motion is denied the Court firmly believes that Plaintiff’s deposition may and should continue for a further session and may include the production of documents (subject to proper service of a valid notice of deposition and request for production of documents). The Court expects counsel to meet and confer and schedule a further session of Plaintiff’s deposition to take place at a mutually agreeable time and location in the near future, and to conduct themselves in professional manner while doing so.