Come to Me If You Want to Talk to Me; Plaintiffs Can’t Haul Corporate Representative to Deposition in California

Alameda County has one of the most active asbestos dockets in California, with defendants from around the country. Recently, an Alameda judge ruled that non-resident corporate representatives of a non-California defendant cannot be hauled to California for deposition. This result is consistent with prior appellate authority, but many trial judges have compelled California depositions for non-California corporate representatives (known as “persons most qualified” or PMQs in California parlance and “persons most knowledgeable” or PMKs in most other jurisdictions). So this decision is welcome news for defendants seeking to avoid that expense, inconvenience and leverage to plaintiffs.

This issue is addressed by conflicting statutes. One says 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 within the state at the time of service.” (Cal. Code Civ. Proc., § 1989.) Other statutes allow for depositions of “an officer, director, management agent or employee” of a party to be set at locations “within the county where the action is pending” or other California locations, with no restrictions based on the residence of the witness.” (Cal. Code Civ. Proc., § 2025.250, 2025.260.)

In Brock v. Metropolitan Life Insurance, Alameda Judge Steven Kaus ruled that the first statute governs. He refused to order a California deposition for a Rhode Island witness, and instead ordered the deposition to take place within 75 miles of the defendant’s principal office in Rhode Island.

Judge Kaus relied principally on Toyota v. Motor Corporation v. Superior Court (2011) 197 Cal.App.4th 1107. Most importantly, the court of appeal found that the Discovery Act of 1986 eliminated from section 2025.260, the phrase “Notwithstanding section 1989.” “By removing the words authorizing the trial court to override section 1989 the Legislature presumptively intended to withdraw that authority which had previously existed.”

Judge Kaus rejected Plaintiffs’ argument that Toyota did not apply because the deponent in this case was a PMQ, whereas witnesses in Toyota were named individually. “From a policy viewpoint, the differentiation between named corporate employees and PMQs, who, to coin a phrase, are people too, is form over substance.”

Judge Kaus’ decision is supported by an additional case he did not cite, I-Ca Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257 in which the California Court of Appeal also affirmed that California superior courts have no power to compel production of defendant’s nonresident PMQ.

This decision is a win for defendants. If this decision becomes a trend, it will be interesting to see how plaintiff counsel will respond. One possibility is that they will be more strategic in whose PMQ to depose. Another could be a more strategic decision in what venue to file; or at best, the decision to dismiss some defendants whose witnesses, officers or not, reside out of state.

When the Shoe Is on the Other Foot: Deposition Time Limits

It was just about two years ago when the Los Angeles Times ran an article criticizing the asbestos defense bar for needlessly extending depositions of plaintiffs dying of mesothelioma.  Specific reference was made to the experience of John Johnson, whose counsel of record were Roger Worthington and Simona Farrise.  Now the office of Ms. Farrise finds itself in the uncomfortable position of attempting to persuade Judge Emilie H. Elias in Los Angeles that she must order another dying witness to appear for deposition to be questioned by attorneys from the Farrise firm.

In the case of Vinko Caric v. American Standard, et al. (LASC No. BC 527187), the Farrise firm represents Mr. Caric.  The firm’s attorneys want to pose questions to former co-worker Albert Jelenic.  But things get interesting when you learn that Mr. Jelenic is ill himself.  According to his attorney, none other than Raphael Metzger, he has leukemia and is dying.  The Metzger firm is not keen on having Mr. Jelenic deposed, causing the Farrise firm to go to Judge Elias seeking an order compelling Jelenic to appear for deposition questioning.

Defense counsel and Judge Elias had the unique opportunity to listen to counsel from Mr. Metzger’s office and counsel from Ms. Farrise’s office debate whether the dying witness can be compelled to appear for deposition questioning and, if so, under what limitations.  The issue has not yet been resolved, with the Metzger office ordered to update the court and parties periodically regarding the condition of Mr. Jelenic.  This may lead to additional briefing. We will follow the issue to see what positions the two dueling plaintiff firms argue.