ADJ17424976 · October 21, 2024

Applicant is a party who invoked California WCAB jurisdiction by filing a claim in California where injury occurred; defendant offered to pay all costs and schedule deposition with QME evaluation; in-person testimony is important for psyche claims; thus, in-person deposition in California is reasonable and required.

From the decision · page 8In the current case, applicant filed the claim in California as that is where the claimed injury occurred. Further, as noted by the WCJ, defendant "offered to schedule the deposition at the time when applicant is traveling to California to be examined by the QME." As such, applicant would already be in California for a QME evaluation during the time of the deposition. Additionally, given the nature of psyche claims, the parties should understand that credibility and witness testimony are crucial to determining the outcome of the relevant issues in this case and as such, should recognize that in person testimony may be more significant to the discovery process. We therefore agree with the WCJ that applicant must appear in person in California for her deposition.

Applicant filed claim in California invoking jurisdiction despite residing out of state

Favours Defendant prevailed

Applicant is a party to the case and jurisdiction is proper for deposition in California

From the decision · page 8In the current case, applicant filed the claim in California as that is where the claimed injury occurred. Further, as noted by the WCJ, defendant "offered to schedule the deposition at the time when applicant is traveling to California to be examined by the QME." As such, applicant would already be in California for a QME evaluation during the time of the deposition. Additionally, given the nature of psyche claims, the parties should understand that credibility and witness testimony are crucial to determining the outcome of the relevant issues in this case and as such, should recognize that in person testimony may be more significant to the discovery process. We therefore agree with the WCJ that applicant must appear in person in California for her deposition.

Defendant offered to pay all costs and schedule deposition with QME evaluation in California

Favours Defendant prevailed

Mitigates burden on applicant and supports reasonableness of in-person deposition

From the decision · page 2After the cancellation, defendant sought an in-person deposition of applicant, to occur contemporaneously with a QME evaluation. Applicant was not in agreement, and on April 22, 2024, defendant filed a petition to compel applicant's deposition. Defendant offered to pay all applicable expenses including transportation, lodging, meals, and lost wages. On May 10, 2024, applicant filed an objection to the petition to compel.

Selected as panel Qualified Medical Evaluator in psyche claim; deposition scheduled in conjunction with QME evaluation.

From the decision · page 2The claim was denied, and the parties proceeded with discovery. Dr. Mohan Nair was ultimately selected as the psyche panel Qualified Medical Evaluator (QME).

Code of Civil Procedure sections 1989, 2025.250, 2025.260

Governs deposition location and exceptions for out-of-state witnesses; court may order deposition at more distant place considering interests of justice.

From the decision · page 7Notwithstanding Moran and sections 5708 and 5709, applicant cites to sections 1989 and 2025.250 of the Code of Civil Procedure and relies upon the case of Toyota Motor Corp. v. Super. Ct. (Stewart) (2011) 197 Cal.App.4th 1107, 1110. Section 1989 indicates that a witness is not obliged to attend a deposition in California unless they are a resident at the time of service. (Code Civ. Proc., § 1989.) In Stewart, the court applied section 1989 to a products liability case wherein plaintiffs sought to depose in California persons most knowledgeable (PMK) about an alleged car defect which caused the plaintiffs' injuries. The witnesses all resided in Japan. The court ultimately held that based upon relevant case law, statutes, and legislative history, the trial court lacked the power to compel a foreign witness to attend a deposition in California.

Labor Code sections 5708, 5709, 5710

Provides flexibility and relaxed rules for discovery in workers' compensation proceedings.

From the decision · page 6III. Turning to the merits of the Petition, we must note that in furtherance of the goal of resolving claims "expeditiously, inexpensively, and without encumbrance of any character," the Legislature has created a "complete system of workers' compensation" to compensate workers for industrial injury or disability irrespective of the fault of any party. (Cal. Const. Art. XIV, § 4.) This "complete system" includes procedures for, inter alia, subpoenas for depositions, including the issuance of notices to appear. (See Cal. Code Regs., tit. 8, § 10640 et seq.) Section 5710(a) provides guidance as to depositions, and it states, in relevant part, that any party to a workers compensation proceeding may depose a witness "... in the manner prescribed by law for like depositions in civil actions in the superior courts of this state under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure." (Lab. Code, § 5710(a).) We note that although section 5710(a) appears to incorporate the Civil Discovery Act, it does so permissively, and the Appeals Board is not bound by the Code of Civil Procedure with respect to parameters

Toyota Motor Corp. v. Super. Ct. (Stewart) (2011) 197 Cal.App.4th 1107

Toyota Motor Corp. v. Super. Ct. (Stewart) (2011) 197 Cal.App.4th 1107

Applicant cited this case to argue against in-person deposition in California due to non-residency; court distinguished applicant as party invoking jurisdiction.

From the decision · page 7Notwithstanding Moran and sections 5708 and 5709, applicant cites to sections 1989 and 2025.250 of the Code of Civil Procedure and relies upon the case of Toyota Motor Corp. v. Super. Ct. (Stewart) (2011) 197 Cal.App.4th 1107, 1110. Section 1989 indicates that a witness is not obliged to attend a deposition in California unless they are a resident at the time of service. (Code Civ. Proc., § 1989.) In Stewart, the court applied section 1989 to a products liability case wherein plaintiffs sought to depose in California persons most knowledgeable (PMK) about an alleged car defect which caused the plaintiffs' injuries. The witnesses all resided in Japan. The court ultimately held that based upon relevant case law, statutes, and legislative history, the trial court lacked the power to compel a foreign witness to attend a deposition in California.

Applicant's residence out of state and prior agreement to virtual deposition via Zoom

From the decision · page 1Applicant contends that pursuant to sections 1989 and 2025.250 of the Code of Civil Procedure, she cannot be legally compelled to attend the deposition in person since the deposition location is not only in excess of 150 miles from her residence, but located in California where she is not a resident.1 Applicant further contends that there is no good cause for an in person deposition since the deposition may be conducted virtually, as previously agreed upon by defendant, via Zoom.

Defendant's offer to pay all costs and schedule deposition with QME evaluation in California

From the decision · page 2After the cancellation, defendant sought an in-person deposition of applicant, to occur contemporaneously with a QME evaluation. Applicant was not in agreement, and on April 22, 2024, defendant filed a petition to compel applicant's deposition. Defendant offered to pay all applicable expenses including transportation, lodging, meals, and lost wages. On May 10, 2024, applicant filed an objection to the petition to compel.