Judge: David A. Rosen, Case: 19STCV43802, Date: 2023-02-24 Tentative Ruling
Case Number: 19STCV43802 Hearing Date: February 24, 2023 Dept: E
Hearing Date: 02/24/2023 – 8:30am
Case No. 19STCV43802
Trial Date: 10/23/2023
Case Name: ORLANDO PRICE v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION
AUTHORITY, and DOES 1-20
TENTATIVE
RULING – MOTION TO COMPEL SUBSEQUENT DEPOSITION
Moving Party: Defendant, Los Angeles County
Metropolitan Transportation Authority
Responding Party: Plaintiff, Orlando Price
RELIEF REQUESTED¿
Defendant, Los Angeles Metropolitan Transportation Authority (Metro) moves the
Court for an order compelling Plaintiff, Orlando Price, to attend a subsequent
deposition.
Defendant alleges as follows in its
notice of motion, “This motion is brought pursuant to Code of Civil Procedure
section 2025.610, on the ground that good causes exist for the subsequent
deposition. The initial deposition of Plaintiff occurred on September 1, 2021.
On October 1, 2021, Plaintiff served Metro's counsel his first Errata sheet,
making substantive changes to his deposition testimony. On October 22, 2021,
Plaintiff served Metro's counsel his second Errata sheet (hereinafter
"Errata Two"), again making substantive changes to his deposition
testimony, including but not limited to essential issues such as the exact
location Plaintiff lost his footing and fell. On July 18, 2022, over three and
a half years after the incident date and almost an entire a year after his
deposition was taken, Plaintiff filed his First Amended Complaint (FAC) adding
new facts and two new causes of action for, VIOLATION OF DISABLED PERSONS ACT,
CAL. CIV. CODE §54 and VIOLATION OF UNRUH ACT, CAL.CIV CODE § 51. Metro now
seeks to depose Plaintiff concerning the above changes to Plaintiffs allegation
and testimony.
Procedural
16/21
Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300):Ok
Correct Address (CCP §1013, §1013a): Ok
Opposition and Reply submitted.
Moving Papers: Notice of Motion/Motion
Opposition Papers: Opposition
Reply Papers: Reply
BACKGROUND ACCORDING TO MOVING
DEFENDANT
The Background according to Defendant
is as follows:
On December 5, 2019, Plaintiff
ORLANDO PRICE'S (hereinafter "Plaintiff) filed this action against
Defendant, LOS ANGELES COUNTY METROPOLITAN TRANSPORATION AUTHORITY, a Public
Entity, (hereinafter "Metro") alleging that on November 16, 2018, he
sustained personal injuries as a result of Metro's negligence when he fell off
the stairs at a Metro station. Plaintiffs Complaint alleges two causes of
actions for (1) Premises Liability; and (2) General Negligence.
On September 1, 2021, Metro's
counsel took the deposition of Plaintiff. [Ashour Decl. ¶2].
On September 7, 2021, Metro's
counsel sent a letter to Plaintiff’s counsel pursuant to Civil Code Section
1038, letting him know that there was no competent evidence of any liability on
Metro and that unless the case was dismissed, a Summary Judgment Motion would
be filed, and sanction would be sought. [Ashour Decl. ¶3].
On October 1, 2021, Plaintiff served
Metro's counsel his first Errata sheet (hereinafter "Errata One"),
making substantive changes to his deposition. [Ashour Decl. ¶ 4; Exhibit
"A" and incorporated herein by this reference].
On October 22, 2021, Plaintiff
served Metro's counsel his second Errata sheet (hereinafter "Errata
Two"), again making substantive changes to his deposition. [Ashour Decl. ¶5;
Exhibit "B" and incorporated herein by this reference].
On July 18, 2022, almost a year
after the initial deposition. Plaintiff filed his First Amended Complaint
("FAC"), adding two causes of action against Metro for Violation of
Disabled Persons Act, Cal. Civ. Code § 54, et seq., and for Violation of Unruh
Act, Cal. Civ Code § 51, et seq. [Ashour Decl. ¶ 6]. Metro has not had the
opportunity to investigate Plaintiffs factual basis for the two added causes of
action through deposition.
As such, Metro seeks a subsequent
deposition of Plaintiff to enable Metro to prepare its litigation in an
adequate fashion.
(Def. Mot. p. 4-5.)
LEGAL STANDARD – Motion to Take a
Subsequent Deposition
CCP
§2025.610(a)-(b) states as follows, “(a) 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.
(b) Notwithstanding subdivision (a), for 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.” (Ibid..)
ANALYSIS
Moving
party seeks to compel a subsequent deposition of Plaintiff by arguing there is
good cause to do so because Plaintiff’s counsel submitted two notices of Errata
that made substantive changes to Plaintiff’s sworn testimony and because Plaintiff’s
operative complaint added causes of action that did not exist at the time of
deposition.
Notices of Errata
Defendant
points the Court to two notices of errata and to the portions of the deposition
related to the notices of errata.
Errata One
The Court notes that when Defendant cited to the
deposition transcript, Defendant did not attach a deposition transcript. The
Defendant presumably copy-pasted the relevant portions from the deposition
transcript. Further, the Court notes that Plaintiff in Opposition did not have
any issues with the portions of the deposition that Defendant alleged were from
the deposition transcript.
Defendant states that Plaintiff’s Errata One made the
following changes:
Page 40, line 11:
Original
Q: "Did those symptoms come and go or were they
always there? "
A: "They were always there once I got diagnosed.
*'
New version
Off and on. Misunderstood.
Defendant alleges that in the deposition, Plaintiff
testified that the reason he fell in the incident was that he was dizzy due to
the medications he was taking. Defendant alleges that Plaintiff was then asked
if the dizziness symptoms were always there or if they came and went, and
Plaintiff responded that the dizziness was constant and always present.
Defendant argues that this change is substantive and
material to the action because it’s material to determine the liability in this
action and whether Plaintiff always had symptoms of dizziness and fatigue from
a pre-existing medical condition.
Defendant states that Plaintiff’s Errata One also made
the following changes:
Page 102, line 22:
Original
Q: "Let's assume there are a total of 50 steps on
that flight of steps from the top to
the bottom. What's your estimate of the number of steps
that were left between you
and the ground when you lost your footing or lost your
balance? Whatever it was. "
A: "Like I said, it was a few seconds. So maybe
from the top, maybe three or four
stairs."
New version
It was more than 2 or 3 steps; it was more than that
probably more than 20+ steps.
Defendant alleges that portions of the incident are
captured on video and that Plaintiff admits to having seen the video prior to
his deposition testimony. Defendant states that nevertheless, after being
served with a 1038 letter and notified that there would be a summary judgment
motion coming, Plaintiff changed his sworn testimony from stating that he lost
his footing three to four steps from the top of the flight of steps, to stating
that he lost his footing midway, more than 20 steps from the top of the stairs.
Defendants argues that his estimation of where in the
flight of stairs Plaintiff lost his footing is material to liability.
Errata Two
The
Court notes that as to the issues brought up in Errata Two, Defendant did not copy-paste
what was stated in the deposition transcript. The Defendant described generally
what was said in the deposition transcript. Further, the Court notes that
Plaintiff in Opposition did not object or note a problem with the alleged
changes that were made in Errata Two.
Defendant states as follows:
During the
deposition, Plaintiff was very adamant that the location of the incident was
the North Hollywood Metro Station on Chandler and Lankershim. He was even shown
a picture of the two different Metro stations, and he specifically, adamantly,
and repeatedly indicated that he was sure that the incident occurred at the
North Hollywood Metro Station and not the Studio City Metro Station. In fact,
during the deposition, in the middle of discussing whether the incident
occurred at the Studio City Metro Station of the North Hollywood Metro Station,
Plaintiff took a break and conferred with his counsel. He came back and he was
still addiment [sic] that the location was the North Hollywood Station and not
the Studio City Station. Now, after the Plaintiff has been advised of the fact
that a Summary Judgment Motion will be filed, and after he had previously
reviewed the 8 transcripts and signed off on their accuracy, Plaintiff’s
Errata Two made changes to his sworn testimony regarding the location where the
incident occurred from West Hollywood Metro Station to the Studio City Metro
Station, 17 separate times.
(Def. Mot. p.
6-7.)
Defendant argues
that the location where the incident occurred as well as Plaintiff’s ability to
accurately recall events are crucial to this action and to Metro’s preparation
of its defense to Plaintiff’s claims.
Opposition as to
Notices of Errata
Plaintiff
argues that no facts have changed since the deposition. Plaintiff argues that
Defendant has already received Plaintiff’s verified responses to Form
Interrogatories, Special Interrogatories, Request for Production of Documents,
and Request for Admissions, Set One and Two, and have even been provided with
further responses to said discovery.
Plaintiff argues
that another deposition would be unreasonably cumulative and duplicative.
Plaintiff argues
that the changes to the deposition were not substantial. In relevant part,
Plaintiff argues:
Plaintiff is
entitled to make changes to his deposition. Section 2025.520(b) of the
California Code of Civil Procedure (“C.C.P.”) allows a deponent to make
“change[s to] the form or the substance of the answer to a question” within 30
days. Defendant’s motion emphasizes two changes made to Plaintiff’s deposition.
These are clearly not substantial changes. Since the onset of this litigation,
Defendant at all times herein has known that Plaintiff is HIV positive and has
been rendered disabled since 2008. As a result of his disability, Plaintiff
suffers from memory issues as well as physical limitations. Plaintiff has been
very transparent about this. Here, Defendant is misusing the discovery process
and trying to go on a fishing expedition at Plaintiff’s expense by conducting a
second session of Plaintiff’s deposition. This is both harassing and an abuse
of the discovery process. Rather, Defendant should serve additional discovery
to get the information alleged is not yet clear after having litigated this
case for over three years. [Madison Decl. ¶7]
(Oppo. p. 4.)
Changes in the
Complaint
Defendant
argues that when it initially took the deposition of Plaintiff, there were only
two causes of action against Metro for premises liability and general
negligence.
Defendant argues
that on July 18, 2022, almost a year after the initial deposition, Plaintiff
filed his FAC adding two causes of action for Violation of Disabled Persons
Act, Cal. Civ. Code §54 et seq. and for Violation of Unruh Act, Cal. Civ. Code
§51 er seq.
Defendant argues
that since it has not had the opportunity to depose Plaintiff to investigate
the factual basis for the two added causes of action, Defendant needs a fair
opportunity to properly defend against Plaintiff’s claim.
The Court notes
that Opposition accurately points out that Plaintiff filed a SAC which only
alleged three causes of action, not four as alleged by Defendant, for –
negligence, premises liability, and Violation of Disabled Persons Act, Cal.
Civ. Code §54 et seq. [The court notes that the SAC was filed after the instant
motion was filed; therefore, when Defendant filed the instant motion it was
under the impression that the operative complaint was the FAC.]
In Opposition, it
does not appear that Plaintiff made any arguments as to a claim being added to
the action that Defendant has not deposed Plaintiff on.
Reply
Reply
argues that for Plaintiff to allege that no facts have changed since the
deposition is false because Plaintiff added a cause of action on lack of access
to the elevators when the original case was just a premises liability case
involving the stairs.
Reply argues a
subsequent deposition is appropriate so it can investigate on facts not asked
or answered by Plaintiff in his original deposition because at that time Defendant
was not preparing for its defense against Plaintiff’s new cause of action
pertaining to access to elevators.
Defendant also
argues that Plaintiff failed to argue why his changes to his testimony were not
substantial. Defendant argues that it appears that Plaintiff is trying to claim
that he has memory issues due to HIV, and that although this might be an
explanation as to why Plaintiff changed his testimony, it is not an explanation
as to why these changes are not substantial.
TENTATIVE RULING
Defendant’s motion
to compel a subsequent deposition of Plaintiff is GRANTED. Defendant
demonstrated good cause because Defendant explained how it needs to investigate
the facts surrounding the added cause of action that was not in the operative
complaint at the time of the deposition. However, Defendant has not demonstrated
good cause for further deposition because of the changes in testimony. The further deposition of Plaintiff now
ordered is confined to the two new causes of action added by Plaintiff to the
FAC.