Judge Anne Hwang, Case Number: 22STCV00322, Date: 2023-12-05 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On January 5, 2022, Plaintiff Mario Antonio Renderos (Plaintiff) filed an action against Defendant Lepolo Halaifonua for negligence surrounding a motor vehicle accident. Defendant now moves to compel Plaintiff’s Volume II deposition. Plaintiff opposes.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).)

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. (Code Civ. Proc., § 2025.410, subd. (c).)

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking that answer or production may adjourn the deposition or complete the examination on other matters without waiving the right at a later time to move for an order compelling that answer or production under Section 2025.480.” (Code Civ. Proc. 2025.460(e).) “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2025.480(b).)

“Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.” (Code Civ. Proc. § 2025.610 (a).) “[F]or good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.” (Code Civ. Proc. § 2025.610 (b).)

Defendant first took Plaintiff’s deposition on February 13, 2023. Defendant asserts he ended it early after 40 minutes because Plaintiff required a Spanish interpreter. (Hagemann Decl. ¶ 6.) Although counsel declares that Plaintiff’s counsel made no objection at the time the deposition was suspended, counsel does not assert that the parties stipulated to a second deposition. (Id.) Plaintiff’s counsel indicated later in the day that Plaintiff would not appear for a second deposition, and he would have to pursue a motion to compel. (Id. ¶ 7.) On July 21, 2023, Defendant served a notice for Plaintiff’s Volume II deposition, set for August 14, 2023. (Id. ¶ 8.) On August 9, 2023, Plaintiff served an objection based on Code of Civil Procedure section 2025.610(a). On August 14, 2023, Plaintiff failed to appear at the deposition. (Id. ¶ 10.)

The parties dispute which discovery statute applies to this scenario. Defendant brings this motion under Code of Civil Procedure section 2025.410(a) and 2025.450(a). However, section 2025.450(a) authorizes a motion to compel if the party has failed to serve a valid objection. Here, Plaintiff served a timely objection because it was served at least three calendar days before the deposition. Additionally, section 2025.450 applies where a party fails to appear or proceed with a deposition. Here, Plaintiff appeared at the deposition; it was the Defendant who decided not to proceed.

Plaintiff argues section 2025.610 applies since Defendant had an opportunity to continue the deposition and therefore, must seek leave to conduct a subsequent one. Plaintiff disputes that he requires a Spanish interpreter and argues it would be oppressive and burdensome to conduct a second deposition in Spanish.[1] Plaintiff may waive any right to an interpreter.[2] (See generally People v. Aguilar (1984) 35 Cal.3d 785, 794 [discussing waiver of constitutional right to interpreter in criminal case].) Defendant has not established good cause for a second deposition.

Lastly, the Court notes Defendant may have sought to compel answers under Code of Civil Procedure section 2025.480. However, that motion must be made within 60 days after completion of the deposition record. (See Code Civ. Proc. § 2025.480(b).) The transcript for the February 13, 2023 deposition was certified on February 28, 2023. (See Hagemann Decl., Exh. C.) Defendant filed this motion on November 8, 2023. Therefore, it is untimely to compel answers.

Defendant shall give notice of the Court’s ruling and file a proof of service.

[1] Plaintiff was directly asked in his deposition whether he wanted a Spanish interpreter, and Plaintiff confirmed that he did not. (Hagemann Dec., Ex. C at p. 31.)

[2] Moreover, the transcript reflects that Plaintiff was responding to questions, and was able to articulate when he did not understand a particular question. (Hagemann Dec., Ex. C at p. 20, 27.)

DEPT:	32
HEARING DATE:	December 5, 2023
CASE NUMBER:	22STCV00322
MOTIONS:	Motion to Compel Plaintiff’s Deposition
MOVING PARTY:	Defendant Lepolo Halaifonua
OPPOSING PARTY:	Plaintiff Mario Antonio Renderos