Webb v. Municipal Court

Opinion

COMPTON, J. In a breach of contract action, the municipal court ordered plaintiff Jerry Webb to appear at the office of defendants’ counsel for the purpose of taking his deposition. Plaintiff was also ordered to pay sanctions of $300 for a previous failure to appear.

Plaintiff petitioned the superior court for a writ of prohibition. That court entered a judgment vacating the sanctions but leaving intact the requirement that plaintiff appear for the taking of his deposition. Plaintiff has appealed. We have concluded that the “judgment” of the superior court is, under the circumstances as we will discuss, nonappealable. Since plaintiff has appeared in pro. per. and in order to illuminate the entire matter, we will, however, discuss the merits of the issues presented.

The parties agree that the municipal court action was subject to the rules of the Economical Litigation Project (ELP) (Cal. Rules of Court, rule 1701 et seq.). Those rules provide, inter alia, that no discovery is permissible except under certain limited circumstances. (Cal. Rules of Court, rule 1719.)

[884]Rule 1719(e)(2), however, provides that on motion and subject to reasonable terms and conditions, the court may authorize the deposition of a party.

As best we can discern from plaintiff’s brief, his contentions are that the order of the municipal court was not preceded by proper notice of motion and that he should not be required to travel to Santa Ana (the location of the office of defendants’ counsel) for the deposition.

Defendants’ counsel concedes that at the time he first noticed plaintiff’s deposition, he was unaware of the provisions of the ELP. The issue first surfaced when defendants’ counsel moved to strike the complaint as sanction for plaintiff’s failure to appear at the deposition. The court refused to impose sanctions but did issue an order that plaintiff be deposed on a specified date.

When plaintiff again failed to appear for the deposition, defendants noticed another motion to strike the complaint. Plaintiff appeared at the hearing on that motion and argued against his being required to appear for deposition. The court ordered the complaint stricken “unless plaintiff submits to his deposition within 30 days.” Plaintiff then commenced this writ proceeding.