Judge: Daniel M. Crowley, Case: 20STCV42991, Date: 2023-03-06 Tentative Ruling

Case Number: 20STCV42991    Hearing Date: March 6, 2023    Dept: 28

Plaintiff Phillip Harris’s Motion to Compel Deposition of Defendant Steven Matthew Navarro; Defendants Steven Matthew Navarro and Beatriz Navarro’s Motion for Protective Order.

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On November 10, 2020, Plaintiff Phillip Harris (“Plaintiff”) filed this action against Defendants Steven Matthew Navarro (“Steven”) and Beatriz Navarro (“Beatriz”) for motor vehicle negligence and general negligence. 

On February 18, 2022, Defendants filed an answer.

On December 22, 2022, Defendants filed a Motion for Protective Order to be heard on March 6, 2023. On February 21, 2023, Plaintiff filed an opposition. On February 27, 2023, Defendants filed a reply.

On January 27, 2023, Plaintiff filed a Motion to Compel Defendant Steven Matthew Navarro’s Deposition to be heard on March 6, 2023.  On February 21, 2023, Defendants filed an opposition. On February 27, 2023, Plaintiff filed a reply.

Trial is currently set for May 10, 2023.  

PARTY’S REQUESTS

Plaintiff requests the Court order Steven to appear for volume two of his deposition testimony and specifically answer the question “Are you aware of the fact when you strike a pedestrian, it’s against the law to leave the scene?”. Plaintiff also requests the Court impose sanctions totaling $2,861.65.

Defendants request the Court impose a protective order precluding Plaintiff’s counsel from asking legal contention type questions at deposition and from engaging in abusive and harass questioning. Defendants also request $1,900.00 in sanctions.

LEGAL STANDARD

Code of Civil Procedure § 2025.450 allows the Court to compel a party’s appearance and to produce documents.  

“If, after service of a deposition notice, a party to the action… without having served a valid objection… fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice.”  A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.  (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP § 2025.450 provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010. 

The court may grant a protective order to prevent certain behavior at a deposition if justice so requires or to protect a party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. CCP § 2025.420. This includes excluding designated persons other than parties, officers, and counsel. The court shall impose sanctions against anyone who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the party acted with substantial justification.

DISCUSSION

On December 2, 2020, Plaintiff took volume one of Steven’s deposition. Plaintiff alleges that throughout the depositions, defense counsel made improper speaking objections, engaged in unnecessary argument with Plaintiff’s counsel and repeatedly spoke over Plaintiff’s counsel. After approximately one hour of testimony, defense counsel suspended the deposition over a Rifkind objection after Plaintiff’s counsel asked if Steven was aware that “when you strike a pedestrian, it’s against the law to leave the scene?” Plaintiff’s counsel then proceeded to speak directly to Steven: “So, Mr. Navarro, before your counsel has an opportunity to say something, I want to just let you know how this does down. What happens if he instructs you not to answer is--”. Plaintiff’s counsel continued to speak directly to Steven, even after defense counsel specifically requested counsel stop.

The Court finds that this question is improper. Plaintiff is effectively asking a lay witness for his legal opinion; Steven is not a legal expert and is not being deposed as a legal expert. The question is improper. The Court denies the motion as to the request to compel an answer to such a question.

The Court also finds that Plaintiff’s counsel’s conduct was inappropriate. When conducting a deposition of a defendant, Plaintiff’s counsel’s interaction with the defendant is limited to the confines of the deposition. Plaintiff’s counsel should not be speaking to a defendant directly outside of asking questions during the deposition. The motion for protective order is granted as to Plaintiff’s counsel speaking directly to Defendant outside of posing proper questions. However, Defendants should not have terminated the deposition over an argument arising out of one single question that counsel already objected to. Plaintiff is entitled to a complete deposition, and parties must agree to a new date for deposition.

The Court will not impose sanctions on either party. The motion to compel was denied, and this was overall a minor issue that should not have led to a motion. The Court finds that because both parties acted inappropriately, sanctions are unwarranted.

CONCLUSION

Plaintiff Phillip Harris’s Motion to Compel Deposition of Defendant Steven Matthew Navarro is DENIED.

 Defendants Steven Matthew Navarro and Beatriz Navarro’s Motion for Protective Order is GRANTED. Plaintiff’s counsel is ordered not to speak directly to Defendant outside of the context of posing questions for depositions. Plaintiff’s counsel is also ordered not to ask questions regarding legal contentions.

Parties are ordered to meet and confer to establish a new deposition date to complete the deposition of Steven.

Both Request for Sanctions are DENIED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.