A California Court of Appeal ruled that non-residents cannot be ordered to appear in California for deposition. The court’s holding extends both to residents of other nations and to residents of states other than California.

The plaintiffs, who were injured in an Idaho car accident, noticed the depositions of five Toyota employees who lived in Japan. After the trial court ordered the production of the Japanese witnesses, Toyota obtained a writ of mandate from the appellate court vacating the order. The Court of Appeal relied on the California Code of Civil Procedure § 1989, which provides that a witness cannot be obligated “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.” Drawing on the legislative history and text of the provision, the court concluded that § 1989 covers not only trial witnesses, but also witnesses testifying at deposition. In so holding, the court rejected the reasoning of Glass v. Superior Court, 204 Cal. App. 3d 1048 (1988), which had reached the opposite conclusion. This split among the California appellate courts may well prompt the California Supreme Court to take the case on review.

Concurring Justice Klein invited the legislature to act. Agreeing that the statutory scheme precluded trial courts from ordering non-residents to appear for deposition in the state, Justice Klein reasoned that such a prohibition makes little sense in a global economy and grants non-resident corporations an unfair advantage over California corporations by shielding their personnel from extensive discovery. Justice Klein implored the legislature to revisit § 1989 “at the earliest opportunity.”

In a subsequent order modifying its opinion, the Court of Appeals clarified that its analysis was limited to depositions of natural persons and that it had expressed no view as to whether trial courts can compel the deposition of an individual testifying on behalf of a non-resident corporation. See Toyota Motor Corp. v. Super. Court, 197 Cal. App. 4th 1107 __ Cal. Rptr. 3d __, (2011).