In the matter of: THE PATRICIA A. PAPAC REVOCABLE TRUST

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.” (§ 2025.260, subd. (a).) “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.” (§ 2025.260, subd. (b).)

However, “[a] witness, including a witness specified in subdivision (b) of Section 1987, 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.” (Code Civ. Proc., § 1989.)

1 The court will refer to James O’Connell and James Barrett collectively as “Respondents.” 2 All further undesignated statutory references are to the Code of Civil Procedure. 3

II. Merits of the Motion

Petitioners maintain that Petitioner Dawn Kirchner resides in Woodstock, Georgia, and Petitioner James Dragston resides in Garden City, Michigan. Thus, they reside more than 150 miles from Santa Clara County and in a different state.

Although neither side addresses the issue,3 there is unambiguous appellate authority that a California court cannot compel an out-of-state deponent to travel to California to attend a deposition. In Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, the Fourth District Court of Appeal, looking at the entire statutory scheme, including section 1989, concluded, “The plain language of the statutory scheme and the legislative history of that language fully support the conclusion that a trial court cannot order a nonresident to appear at a California deposition.” (Id., at p. 1125.) This Court finds Toyota Motor Corp. persuasive and need not go further.

Even if the Court were to engage in the balancing urged by Respondents, the Court would deny the motion. Respondents seek to compel Petitioners to appear for their depositions in Santa Clara County primarily due to the alleged inadequacies of remote depositions for judging the credibility of deponents. As Petitioners counter, remote depositions are now routinely conducted and Respondents identify no specific challenges, such as language barriers or issues with document management, that would counsel against holding the depositions remotely.

The availability of remote depositions cuts strongly against requiring Petitioners to travel to Santa Clara County. While the Court is aware of some difficulties and drawbacks of remote testimony, such testimony at deposition has become common practice and statutes and rules of court have been enacted to address remote deposition procedures. (See § 2025.310; Cal. Rules of Court, rule 3.1010.) The use of remote depositions can alleviate the concerns of expense, logistics and inconvenience of travelling to another state even in light of Petitioners’ choice of forum.

CONCLUSION

The motion is DENIED.

The Court will prepare the final order.

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3 Indeed, the parties’ briefing is devoid of any case citations. 4