Judge Anne Hwang, Case Number: 22STCV04047, Date: 2024-05-21 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 February 2, 2022, Plaintiffs filed a complaint against ASN Calabasas I LLC (“Defendant”) and Does 1 to 100 for the wrongful death of Decedent Melissa Amber (“Decedent”). The operative second amended complaint (“SAC”) was filed on October 26, 2022, and alleges that Decedent died after slipping and falling on water leaking from the restroom in her rental unit. (SAC ¶ 16.) The SAC also asserts a negligent infliction of emotional distress cause of action.

On November 14, 2023, at 9:00 a.m. Defendant began the deposition of Plaintiff Edelmira Vega Rios (“Plaintiff”), who is Decedent’s mother and was present when Decedent fell. (See SAC ¶¶ 5, 25.) The deposition took place for approximately five hours. (Williams Decl. ¶¶ 9–10.) Defendant requested a second session of the deposition, but Plaintiff refused to stipulate.

On February 2, 2024, Defendant filed the instant motion to compel the continued deposition of Plaintiff, arguing that Plaintiff failed to respond to relevant questions without valid objections. Defendant also seeks monetary sanctions.[1] Plaintiffs oppose, also seeking sanctions, and Defendant replies.

“(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 discovery may move the court for an order compelling that answer or production.

(b) 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.”

“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc. § 2025.480(i).)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2025.480(j).)

“Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” (Code Civ. Proc. § 2025.290(a).)

The Declaration of Laura C. Williams, Defendant’s counsel, states the following: “On the record, I met and conferred with Ms. Nuckel during which she stated Plaintiffs' position was that the deposition was being concluded at ASN counsel's prerogative and that they were agreeable to continuing with the full seven hours that day (notwithstanding the obvious fact that Plaintiffs' counsel himself had already left), but that another session would not be allowed. I then made a record reflecting my attempt to meet and confer on the issue of scheduling a second deposition session, and that Plaintiff Rios and her counsel simply refused.” (Williams Decl.¶ 11.) Though Counsel does not state that a second meet and confer effort was attempted, it appears Defendant made a reasonable attempt to resolve the issue.

As an initial matter, the certified copy of the deposition transcript does not indicate when the transcript was completed. (See Williams Decl., Exh. B.) Therefore it is unclear whether this motion was made within the 60-day deadline. (Code Civ. Proc. § 2025.480(b).) Nevertheless, Plaintiffs do not object to this. Therefore, the Court will consider the motion.

Defendant asserts that Plaintiff did not serve objections to the operative deposition. The deposition was conducted remotely. Defendant contends Plaintiff provided evasive, non-responsive statements to the following questions regarding: (1) Plaintiff David Dwight Rios-Howard's father; (2) authenticating the Third Amended Deposition Notice and Request for Production; (3) whether Plaintiff was looking down at her cell phone during the deposition; (4) whether Plaintiff could draw on a photograph marked as an exhibit; and (5) a GoFundMe post that Plaintiff wrote. Additionally, Defendant argues that during the later portion of the deposition, Plaintiff admitted she was not feeling well, was stressed, had a headache, and her answers became entirely unresponsive.

Defendant’s separate statement list the following questions it seeks to compel:

For this question, Defendant fails to explain in the separate statement how the issue of whether Plaintiff likes co-Plaintiff David’s father is relevant to this wrongful death action. Plaintiff is also the guardian ad litem for David in this case. Additionally, it appears that Plaintiff eventually answered the question (albeit not as a “yes” or “no”). A few moments later, the following exchange took place:

A. No, I'm not refusing. It's just that I'm not -- I don't know what to tell you. I'm focused on my grandson and my focus is not on his father. I don't even know him. Should I say? I don't know him.” (Williams Decl., Exh. B., Rios Depo. 46:11–16.)

For this question, the separate statement does not describe how the question is relevant. Regardless, the transcript shows that when pressed on the question further, Plaintiff responded “I have -- really, from my heart to yours, I have no idea.” (Rios Depo. 51:5–6.)

Defendant does not set forth the relevancy of this question in the separate statement. Therefore, the motion to compel is denied.

Here, it appears Plaintiff answered this question with “I can't remember if I've seen it or not.” (Rios Depo. 58:15.) Therefore, the motion to compel is denied.

5. I'm sorry. You were looking down. Were you looking at your phone just now?

It appears this question was asked to determine if Plaintiff was being improperly coached by counsel during the deposition. Based on the transcript, Plaintiff did not give a clear response. Therefore, the motion to compel is granted.

6. Is there -- Elizabeth, are you able to give Ms. Rios control and allow her to draw on the document?

According to the transcript, Plaintiff’s counsel did not provide a sufficient objection or basis for preventing Plaintiff from drawing, or even attempting to draw, on the exhibit. In opposition, Plaintiff argues that drawing on a document is not the same thing as a reenactment, however, fails to provide authority in support. Additionally, the argument that the drawing could be more prejudicial than probative is unpersuasive here since the Court is not ruling on questions of admissibility at trial. Therefore, the motion to compel Plaintiff to draw on the exhibit according to Defendant’s questions is granted. (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1111–12 [(former section 2025.480(a)) includes “nonverbal as well as verbal responses at a videotaped deposition—which may require a deponent to perform a demonstration or reenactment at the request of a party”].)

7. It says, "Mira Rios is organizing this fund-raiser," right there on Exhibit 1 -- or Exhibit 5, page 1. Is that you?

The transcript shows that Plaintiff refused to answer the question because she made a promise not to disclose the identity of the person who made the GoFundMe page. (Depo. 174:16–25.) When pressed further, Plaintiff then changed her testimony, stating “I don’t even remember the family member.” (Depo. 175:1–9.) Therefore, the Court finds she was unresponsive and the motion to compel is granted.

8. Third paragraph on page 4 of Exhibit 5 – my voice is starting to go. It says, okay, "and get a court order that prevents Dwight from treating my relationship with my grandson and Mimi's legacy like a piece of dirt." Is that an accurate reflection of your feelings about that dispute at that time, yes or no?

Here, although Plaintiff did not provide a yes or no response, she responded with “I can’t remember how I was feeling.” (Depo. 207:12–13.) Therefore, the motion to compel is denied.

Therefore, the Court grants the motion to compel responses to questions numbers 5, 6, 7, as indicated in Defendant’s separate statement. The remaining are denied.

Both parties seek sanctions against each other. However, seeing as the motion is granted in part, and denied in part, the Court declines to award monetary sanctions.

Therefore, Defendant’s motion to Compel the Continued Deposition of Plaintiff Edelmira Vega Rios is granted in part and denied in part. Plaintiff shall give complete responses to the questions numbers 5, 6, 7 at the resumption of her deposition.

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

[1] Defendant discusses Code of Civil Procedure section 2025.450 throughout its motion. However, that section only applies where a deponent fails to appear for deposition. Here, it appears Plaintiff attended the deposition, but just failed to give complete responses. Therefore, section 2025.480, which Defendant cites in the motion, is more appropriate.

DEPT:	32
HEARING DATE:	May 21, 2024
CASE NUMBER:	22STCV04047
MOTIONS:	Motion to Compel the Continued Deposition of Plaintiff Edelmira Vega Rios
MOVING PARTY:	Defendant/Cross-Complainant ASN Calabasas I LLC
OPPOSING PARTY:	Plaintiffs Edelmira Vega Rios et al.