(Los Angeles County Super. Ct. Nos. BC407415, BC412065, BC412066, BC414639) ORIGINAL PROCEEDINGS in mandate. Conrad R. Aragon, Judge. Petition granted and remanded with directions.
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Defendants and petitioners Toyota Motor Corporation, Toyota Motor North America, Inc. and Toyota Motor Sales, U.S.A., Inc. (collectively, Toyota) seek a writ of mandate directing the trial court to vacate its order granting a motion to compel Toyota to produce five of its employees, who are Japanese residents, for deposition in California and to enter a new and different order denying that motion.
Code of Civil Procedure section 1989*fn1 provides that a nonresident of California is not obliged to attend as a witness in this state. After a careful review of the relevant statutes and related legislative history, we conclude that this residency limitation applies not only to trials, but also to discovery. As a result, the trial court has no authority to compel Japanese residents to come to Los Angeles to attend depositions. Neither the legislative history nor the meager case authority on this issue persuasively provide otherwise. We will therefore grant Toyota's petition for a writ of mandate and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2009, plaintiffs and real parties in interest Michael Stewart and Shawna Stewart, individually and as personal representatives and successors-in-interest to the estate of Michael Levi Stewart, and Logan Ivie, Tucker Hathaway and Luckus Sisiam (collectively, plaintiffs) filed this products liability action against Toyota. The action arose out of the 2007 single vehicle crash of plaintiffs' Toyota pickup truck in Idaho. In summary, plaintiffs alleged that (1) the steering rod in their vehicle contained a defect that caused it to crack and break; (2) the failed steering rod prevented steering, resulting in the crash; (3) decedent Michael Levi Stewart, as well as plaintiffs Ivie, Hathaway and Sisiam, all were injured in the crash; (4) decedent subsequently died of his injuries; and (5) after learning of the alleged defect, Toyota waited too long to recall affected vehicles, and instituted a recall in Japan before it did so in the United States.
In March 2010, plaintiffs noticed the depositions of five individual Toyota employees as individual witnesses, not corporate representatives. All five individuals are Japanese residents. They are: Hiroyuki Yokoyama, a Japanese executive and former head of Toyota's customer quality engineering division in Japan; Mitsatiru Kato, who works at Toyota in Japan; Tag Taguchi, who had been assigned to Toyota's North American operation but had returned to Japan; Shinji Miyamoto, current head of the customer quality engineering division in Japan; and Morikazu Tsuji, who heads a subgroup there.
After plaintiffs sought deposition dates for these witnesses, Toyota declined to produce them for deposition in California and responded that the individual employees must be deposed in Japan. In April 2010, plaintiffs moved to compel Toyota to produce the five Japanese residents for depositions in Gardena, California. Plaintiffs conceded that section 1989 precluded the court from ordering Japanese witnesses to travel to California for trial, but asserted the court had authority under section 2025.260*fn2 to compel said witnesses to travel to California for deposition.
In opposition to the motion to compel, Toyota argued section 1989 precludes the court from compelling a foreign national to submit to deposition in California. Instead, a party seeking to depose a resident of a foreign country may depose the witness in his or her homeland pursuant to section 2027.010. In the alternative, Toyota argued that even assuming section 2025.260 authorized the court to compel a foreign resident to attend a deposition in California, the balancing test of section 2025.260, subdivision (b) weighed against compelling the depositions to be taken in California.
On June 15, 2010, the trial court granted plaintiffs' motion to compel the five named foreign resident executives of Toyota to attend deposition in California, subject to the following terms and conditions: "(a) plaintiff shall pay reasonable airfare (economy class, round-trip) and reasonably priced lodging for the deponents in California; and (b) the deposition of each deponent shall be one day in duration, from 10 a.m. to 5 p.m. (with a 10 minute break each hour and a one hour lunch break), at Toyota's counsel's Gardena, California offices." The trial court noted the dearth of case law directly on point*fn3 and stayed the matter to enable Toyota to seek writ review.
On June 28, 2010, Toyota filed the instant petition for writ of mandate. We issued an order to show cause and set the matter for hearing.
The essential issue presented in this case is: does section 1989 prohibit the trial court from compelling a witness residing outside of California to travel to California for deposition or, as plaintiffs argue, does section 2025.260 vest the trial court with the discretionary authority (after applying the balancing factors set out in section 2025.260, subdivision (b)), to compel a nonresident witness to travel to California for deposition?
The issues raised in this case must be resolved by the interpretation and application of the relevant provisions of the Code of Civil Procedure. These are issues of law which we review de novo. (Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 9.) It is worth emphasizing that the trial court expressed considerable uncertainty about its decision in this matter and encouraged appellate court review by granting a limited stay of its order for that purpose.
We will first discuss the plain language of the statutes, which leads us to the conclusion that section 1989 prohibits the trial court from compelling a foreign resident to attend a deposition in California. Second, we will consider the legislative history of the relevant statutes, which confirms our conclusion. Finally, we will consider a case which reached a contrary conclusion (Glass v. Superior Court (1988) 204 Cal.App.3d 1048 (Glass) and reject its analysis.
2. Section 1989 Applies to Deposition Witnesses
Section 1989 provides 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." Section 1878 defines "witness" to mean "a person whose declaration under oath is received as evidence for any purpose, whether such declaration be made on oral examination, or by deposition or affidavit." (Italics added.) Moreover, a deposition can only take place before an "officer." (§ 2025.320.) Thus, section 1989 applies not only to those witnesses obliged to attend as witnesses in court proceedings, but those witnesses obliged to give testimony by deposition before deposition officers.
Additionally, we note that the Civil Discovery Act provides a means for taking depositions of non-California residents in the state or country of their residence. Section 2026.010, provides for depositions in other states, and section 2027.010, provides for depositions in foreign nations.
While section 2025.260 provides for a court to permit a deposition of a party or officer, director, managing agent, or employee of a party at a place "that is more distant than that permitted under Section 2025.250 [75 miles from the deponent's residence or within the county where the action is pending and within 150 miles of the deponent's residence]," section 2025.260 does not provide for those depositions to be held at a place more distant than that permitted by section 1989. There is simply no conflict between the plain language of sections 1989 and 2025.260. Section 2025.260 permits depositions more than 75 (or 150) miles from a deponent's residence, but section 1989 restricts a deponent from being required to attend a California deposition if the deponent is not a California resident.
The trial court's order violates the terms of section 1989 by compelling the Japanese resident deponents attend as "witnesses" before an "officer" even though they were not "resident within the state at the time of service." It follows that the order compelling their attendance at deposition was error and must be reversed. (See Amoco Chemical Co. v. Certain Underwriters at Lloyd's of London (1995) 34 Cal.App.4th 554, 559.)
3. Legislative History Supports This Conclusion
While we see no conflict in the plain language of sections 1989 and 2025.260, a review of the legislative history of both sections, taken together, confirms our interpretation.
a. Originally, Section 1989 Applied to Depositions
The legislative history of both sections together begins with the legislative history of section 1989 standing alone. The statute was originally enacted in 1872, and provided, "A witness is not obliged to attend as a witness before any [c]court, [j]udge, [j]ustice, or any other officer, out of the county in which he resides, unless the distance be less than 30 miles from his place of residence to the place of trial." It was subsequently amended four times to successively increase the mileage limitation to 50 miles (Stats. 1915, ch. 162, § 1, p. 330), 100 miles (Stats. 1935, ch. 257, § 1, p. 942), 150 miles (Stats. 1957, ch. 1560, § 1, p. 2918), and 500 miles (Stats. 1980, ch. 591, § 1, p. 1603).
Even though section 1989 used language defining the mileage limitation as the distance between the witness's "residence" and the "place of trial," section 1989 applied to depositions as well as trials. (See Pollak v. Superior Court (1925) 197 Cal. 389, 393 [requiring witnesses to attend depositions within 50 miles of their residences, noting that there is no language "circumscribing the territorial limits within which . . . depositions shall be taken, except those set forth in . . . section 1989 . . . ."].) Indeed, at the time section 1989 was initially adopted, section 1878, which defines "witness" to include a witness "whose declaration . . . is . . . made . . . by deposition," was simultaneously enacted.
As section 1989 was not amended, other than to increase the permitted mileage, from its enactment until 1981, we turn to the statutes governing depositions. We join this area of statutory development in 1957, when the taking of depositions was governed by former section 2019. As originally enacted (seeStats. 1957, ch. 1904, § 3), section 2019 did not contain any mileage limit. Section 2019, subdivision (a)(1) merely provided that notice of taking depositions " 'must be at least 10 days adding also one day for every 100 miles of the distance of the place of examination from the residence of the person to whom the notice is given.' " (See Twin Lock, Inc. v. Superior Court (1959) 52 Cal.2d 754, 760 (Twin Lock).) After the 1957 enactment of section 2019, section 1989 continued to apply to depositions. (Twin Lock, supra, 52 Cal.2d at p. 760 [1957 version of section 2019 "is not sufficient . . . to justify a conclusion that the Legislature thereby contemplated that witnesses ...