Case Number: BC506808    Hearing Date: August 13, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

MONIQUE M. MORRISON,
Plaintiff(s),
vs.

COURTNEY S. FALSEY, ET AL.,
Defendant(s).

Case No.: BC506808

[TENATATIVE] ORDER GRANTING MOTION TO COMPEL DEPOSITION

Dept. 92
1:30 p.m. — #add-on
August 13, 2014

Plaintiff, Monique M. Morrison’s Motion to Compel Defendant, Courtney S. Falsey’s Deposition is Granted. Defendant is ordered to appear for deposition in Los Angeles. The parties are ordered to meet and confer to choose a convenient date and time for the deposition.

Plaintiff, Monique M. Morrison filed this action against Defendant, Courtney S. Falsey for damages arising out of an automobile accident. On 5/05/14, Plaintiff served Defendant with a notice of deposition, setting the deposition for 5/28/14 in Plaintiff’s attorney’s office. On 5/12/14, Defense Counsel contacted Plaintiff’s attorney and indicated Defendant was not available on 5/28/14; Plaintiff agreed to continue the deposition if Defendant would provide three dates for deposition. Defendant did so, and the parties agreed to a deposition on 6/03/14. Plaintiff served a notice of deposition, setting the 6/03/14 deposition at Plaintiff’s attorney’s office.

On 5/30/14, Defense Counsel wrote to Plaintiff’s counsel, indicating that Defendant could not appear for deposition on 6/03/14 because she was “moving to New York tomorrow” (5/31/14). The parties’ attorneys have been meeting and conferring since that time, with the dispute being over whether Defendant must travel to California for deposition (Plaintiff’s position), or whether Defendant may be deposed in New York, with Defendant bearing the cost for video conferencing technology for the deposition.

CCP §2025.250(a) provides:
(a) Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party 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.

CCP §2025.260 provides:
(a) A party desiring to take the deposition of a natural person who is a party to the action … may make a motion for an order that the deponent attend for deposition at a place that is more distant than that permitted under Section 2025.250. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) In exercising its discretion to grant or deny this motion, 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 that more distant place, including, but not limited to, the following:
(1) Whether the moving party selected the forum.
(2) Whether the deponent will be present to testify at the trial of the action.
(3) The convenience of the deponent.
(4) The feasibility of conducting the deposition by written questions under Chapter 11 (commencing with Section 2028.010), or of using a discovery method other than a deposition.
(5) The number of depositions sought to be taken at a place more distant than that permitted under Section 2025.250.
(6) The expense to the parties of requiring the deposition to be taken within the distance permitted under Section 2025.250.
(7) The whereabouts of the deponent at the time for which the deposition is scheduled.
(c) The order may be conditioned on the advancement by the moving party of the reasonable expenses and costs to the deponent for travel to the place of deposition.

(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to increase the travel limits for a party deponent, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

This is a difficult issue. On the one hand, Defendant is residing in New York, and clearly travel to Los Angeles for a deposition will create hardship and cost, including airfare, hotel expenses, and potential lost earnings. On the other hand, there are advantages to taking a deposition in person, as opposed to via teleconferencing.

Plaintiff properly noticed Defendant’s deposition at a time when Defendant was living in Los Angeles. Defense Counsel argues it was “his fault” because he didn’t check with Defendant and didn’t know she was moving; Counsel argues his client shouldn’t be punished for his mistake. However, the deposition was originally scheduled for 5/28/14. On 5/12/14, when Defense Counsel talked to Plaintiff’s attorney about moving the depo, Defense Counsel told Plaintiff’s attorney that the change was necessary due to Defendant’s schedule. Defendant should have communicated with her attorney, when requesting the change, and let him know that she was moving to New York and that the deposition needed to be rescheduled to a time before she left, as she would not be able to easily return.

The Court is inclined to grant the motion and to order Defendant to appear for deposition in Los Angeles. Plaintiff seeks sanctions in connection with the motion. The Court finds Defendant acted with substantial justification and imposition of sanctions would be unjust. The request for sanctions is therefore denied.

Dated this 13th day of August, 2014

Hon. Elia Weinbach
Judge of the Superior Court