Judge: David A. Rosen, Case: BC654195, Date: 2022-09-30 Tentative Ruling
Case Number: BC654195 Hearing Date: September 30, 2022 Dept: E
Hearing Date: 9/30/2022
– 10:00am
Case No: BC654195
Trial Date: UNSET (Appellate Stay)
Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR COMPANY OF LA ET AL.
TENTATIVE RULING ON MOTION TO COMPEL FURTHER
ANSWERS TO DEPOSITION QUESTIONS
Proof of Service Timely Filed (CRC Rule
3.1300): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: ok
Moving
Party: Intervenor Defendant, Empire Fire and Marine Insurance Company
(“Empire”)
Responding
Party: Plaintiff, Donara Grigoryan
Opposition/Reply
“All papers opposing a motion so noticed shall be filed with the
court and a copy served on each party at least nine court days, and all reply
papers at least five court days before the hearing.” (CCP §1005(b).)
Here, the Opposition was submitted late. The Opposition was served
by email on September 19, 2022, and nine court days before the instant hearing would
have been September 16, 2022. However, it does not appear that the Reply
addressed the fact that the Opposition was late because no Reply memo was
submitted.
Technically, it does not appear that a Reply memo was submitted.
On eCourt, two documents were submitted as Reply documents. On eCourt, one is
titled “Reply Reply to Intervenor’s Motion to Compel Answer to Deposition
Questions and to Permit Discovery,” and another is titled “Declaration
Declaration of Carolyn McNiven in Support of Reply to Intervenor’s Motion to
Compel Answers to Deposition Questions and to Permit Discovery.” Problematic
with these two documents is that they both appear to be identical to each
other, and they both appear to be the 205-page declaration of Carolyn Mcniven.
This declaration contains an Exhibit A and an Exhibit B but considering the
fact that no Reply memo was submitted, the Court has no context as to why these
exhibits are being submitted.
RELIEF REQUESTED
Empire Fire and Marine Insurance Company moves
for an order under CCP §2025.480(a) compelling Plaintiff to provide deposition
answers and to permit discovery about her physical condition and any new
injuries on the grounds that Plaintiff failed to produce her recent medical
records and answer questions about her post-July 2019 medical care at her June
6, 2022, deposition. Specifically, Empire moves to compel answers to the
questions reflected in the following lines of the deposition transcript: Pages
49:22 – 52:21; 53:6 – 56:21; 80:24 – 83:20; 84:21 – 85:9; 90:12 – 94:15; 100:8
– 15; 121:4 – 9; and 123:4 – 17.
Empire also makes the instant motion pursuant
to CCP §2024.050(a) and 128(a) on the grounds that an order re-opening
discovery to allow Empire to question Plaintiff about her current physical
condition and her most recent (June 2022) car accident and request production
of documents and records concerning the accident and subsequent medical
examinations and/or treatments is appropriate.
BACKGROUND
On March 15, 2017, Plaintiff filed a complaint
against Enterprise Rent-a-Car Company of Los Angeles, EAN Holdings LLC, and
Izat Murataliev. Plaintiff alleged that she was a passenger in an automobile
and Defendants negligently owned, entrusted, managed, maintained, drove, and
operated their vehicle so as to cause said motor vehicle to collide with the
automobile that Plaintiff was a passenger in.
On January 20, 2022, this Court granted
Empire’s unopposed ex parte application for leave to file its Complaint-in-Intervention.
Empire believes that the accident was the product of a staged accident
insurance fraud scheme and as such could not rely on its insured (Murataliev’s
Estate) to defend its interests in this case.
As to this motion, first, Empire wants Plaintiff
to answer the questions that she should have answered at her June 6, 2022,
deposition—namely, questions about the claimed lingering effects of the 2015
accident during the three-year period since her last deposition and any medical
treatments, tests, or advice that she has obtained from treating providers
during that period. Second, Empire wants to obtain updated discovery from
Plaintiff (including a deposition and document requests) relating to
Plaintiff’s present physical condition and any new treatments and injuries that
she may have sustained during this three-year period, including on June 22,
2022, when she was in a two-car accident where one car apparently crossed over
three lanes of traffic, hitting another.
PROCEDURAL
Timeliness
“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.” (CCP
§2025.480(b).)
Empire argues, “This motion to compel is also
timely; the record of the June 6, 2022, deposition was completed on June 21,
2022, and thus this motion is filed within the required 60 days.” (Empire mot.
p.14.) Opposition does not address whether
the instant motion is timely or not with respect to the 60-days’ notice.
Empire does not explain how or why the record
was complete on June 21, 2022. But, assuming the record was complete on June
21, 2022, the 60th day thereafter would be Saturday, August 20,
2022. However, the instant motion was filed and served by email on Monday,
August 22, 2022.
Moving party, at its Footnote 4 with respect
to the 60-day requirement, cites 2025.450(a). The Court is uncertain as to why
moving party references 2025.450(a) when the code section pertaining to
compelling a further answer when deponent fails to answer a question and the 60-day
timeliness issues are from 2025.480(a)-(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. 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.” (CCP §2025.610. (a)-(b)
[Emph. added].)]
Meet and Confer
The moving party met and conferred but was not
able to reach an agreement with opposing counsel. (Decl. Linhardt ¶13-16.)
Depo Transcript
“Not less than five days prior to the hearing
on this motion, the moving party shall lodge with the court a certified copy of
any parts of the stenographic transcript of the deposition that are relevant to
the motion. If a deposition is recorded by audio or video technology, the
moving party is required to lodge a certified copy of a transcript of any parts
of the deposition that are relevant to the motion.” (CCP §2025.480(h).)
Here, moving party lodged the deposition
transcript when filing the instant motion. The June 6, 2022, deposition
transcript is attached as Exhibit F in the Linhardt Declaration. Moving party
states the transcript was certified by the reporter on June 21, 2022. (Decl.
Linhardt ¶10, Ex. F.)
Moving Party’s (Empire/Intervenor Defendant)
Arguments
Moving party argues as follows, “By failing to
produce her recent medical records and answer questions about her post-July
2019 medical care at her June 6, 2022, deposition, Plaintiff flouted the clear
orders of this Court and wasted the time of all counsel and (now) this Court.
Empire thus has been forced to seek an order compelling Plaintiff to answer the
questions that she refused to answer on June 6th and that were specifically
permitted by this Court’s prior order, namely questions about her interactions
during the approximately three years since her last deposition with medical
providers concerning the injuries that she claims that she sustained in the
July 2015 accident. She also should be compelled to describe (i) the medical
records that she provided to Dr. Nourian in May or June 2022 in connection with
her consultation with him (including MRI reports) and any other recent records
of medical care or testing that she received since her July 2019 deposition,
none of which she produced in discovery in this case, and (ii) what reasons, if
any, she had for withholding these records.” (Empire Mot. p.13.)
Moving party further argues:
Defense counsel were
well within their right to ask Plaintiff to describe what she was told by Dr.
Nourian when she met with him the week before her July 6, 2022, deposition,
including what he had to say about her treatments and tests before and after
the July 2015 accident. Rather than allow Plaintiff to answer defense counsel’s
questions, Plaintiff’s counsel instructed her not to answer. An attorney should
not instruct a client not to answer questions during a deposition without a
legal basis for doing so. (Cal. Attorney Guidelines § 9(a)(7).)5 Here,
Plaintiff’s counsel invoked the Court’s order when he instructed Plaintiff not
to answer questions about her interactions with Dr. Nourian in May or June
2022. For example, in the following exchange:
Q: Did you discuss
with Dr. Nourian details about your prior your previous accidents before 2015?
MR. MANUKYAN: That's
again, inappropriate, counsel. Have you read the judge's order or am I the only
one who's read it?
Q: I was actually the
who did the ex-parte and –
MR. MANUKYAN: So then
I'm sure you have read it. And that's inappropriate and I'm going to instruct
her not to answer it. (Linhardt Decl., Ex. F, 53:12-21.)
In this example and in
the other instances where Mr. Manukyan relied on the Court’s order as a
purported basis for instructing his client not to answer questions about her
interactions with Dr. Nourian or her current physical condition, the objections
and instructions were manifestly improper as the Court’s order specifically
contemplated defense counsel to question Plaintiff about her current condition
and treatment since March 2019. (See Linhardt Decl., Ex. C [subsequently
granted ex parte application requesting “limited discovery as to Plaintiff’s
treatment since March 2019 and potential need for future treatment”]; Ex. D
[notice of ruling and minute order granting ex parte application].) Indeed, the
Court’s order specifically provided that the reopening of discovery included “a
second limited deposition of plaintiff as to plaintiff’s current condition,
treatment since March 2019 and plans for future treatment”; therefore,
counsel’s reliance on the Court’s order was not wellgrounded. (Id., Ex. D.)
Notably, Plaintiff’s counsel did not seek to suspend the deposition and then
seek a protective order if indeed they believed that the questioning was
outside the scope of the order. Not only was Plaintiff’s objection improper—as
the Court’s order permitted the lines of questioning—the procedure of
instructing the witness not to answer was likewise improper. The appropriate
cure is for the Court to order Plaintiff to complete her deposition and answer
fully and completely questions about her medical care—including treatments,
testing, and consultations—since July 2019.
(Empire Mot. p.14-15.)
Empire also states as follows, “Empire is also
seeking the Court’s permission to question Plaintiff at her deposition about
her current physical condition and her most recent (June 2022) car accident and
propound document requests upon Plaintiff seeking records concerning the
accident and subsequent medical examinations and/or treatments. While arguably
a further Court order regarding deposition questioning may not be strictly
necessary given the expansiveness of the Court’s prior order—which permitted
questioning on all her treatments after March 2019—Empire wishes to ensure that
there is not future confusion and motion practice about its ability to probe
Plaintiff about these areas. Empire also seeks permission to obtain records
from Plaintiff about this latest accident and any treatments or examinations
she has had since sustaining any injuries and any claims or damages
attributable to it.” (Empire. Mot. p.16-17.)
Empire also argues, “…good cause exists for
the Court to use its power and discretion to allow Empire to depose Plaintiff
and obtain records from her about the new June 20, 2022, car accident. Further,
as the accident occurred after Plaintiff’s deposition concluded, there is no
way that Empire could have asked Plaintiff about it at her June 6, 2022,
deposition. (Linhardt Decl., ¶ 11, Ex. G.) In addition, questions about this
new accident are reasonably calculated to lead to the discovery of admissible
evidence as they may elicit testimony constituting further proof that Plaintiff
stages accidents for a living and is perpetrating a fraud on this court in the
process.” (Empire Mot. p.18.)
Opposition (Plaintiff)
Plaintiff argues as follows:
EMPIRE entered this
action on January 20, 2022, after filing a Motion in Intervention (Exhibit A)
in which it represented to the parties and this very Court that its
intervention into the case would not enlarge the issues in this litigation.
EMPIRE did not at that time file a motion to reopen discovery. Instead, the
Estate of Murataliev went in Ex Parte seeking to reopen certain discovery.
(Exhibit B). The Court granted the Estate of Murataliev’s motion seeking a
“limited” second deposition of Plaintiff Grigoryan. The Court, however,
identified that the Estate of Murataliev should be entitled to a limited
deposition of Plaintiff “as to Plaintiff’s current condition, treatment since
March 2019 and future treatment.” (Exhibit C). Notice of that order was served
upon counsel for Empire. Instead of at that point seeking to modify the order
to the extent sought, EMPIRE waited until Plaintiff’s second deposition on June
6, 2022, wherein it sought answers to questions outside the scope of that
order, then waited another three months before bringing the instant motion
seeking now a third deposition.
(Opp. p. 2.)
Plaintiff further
argues that:
(1) Empire does not
have a right to have this motion heard given that it is being brought after the
motion hearing cutoff, (2) EMPIRE does not have standing to bring the instant
motion given that the deposition notice was served by the Estate of Murataliev
(3) EMPIRE is improperly seeking a motion for reconsideration of its June 10,
2022 Ex Parte Application (4) EMPIRE was dilatory in its seeking of the current
discovery, (4) the discovery questions go beyond those in the Court’s prior
Order, and (5) Empire and Defendants have subpoenaed the records of the July
2022 accident, set the deposition of Dr. Nourian, and taken the deposition of
Dr. Mobin.
(Oppo. p.2.)
Reply
No Reply memo submitted, just a Reply declaration
submitted.
LEGAL STANDARD
“Unless otherwise limited by order of the court
in accordance with this title, any party may obtain discovery regarding any
matter, not privileged, that is relevant to the subject matter involved in the
pending action or to the determination of any motion made in that action, if
the matter either is itself admissible in evidence or appears reasonably
calculated to lead to the discovery of admissible evidence. Discovery may relate
to the claim or defense of the party seeking discovery or of any other party to
the action. Discovery may be obtained of the identity and location of persons
having knowledge of any discoverable matter, as well as of the existence,
description, nature, custody, condition, and location of any document,
electronically stored information, tangible thing, or land or other property.”
(CCP §2017.010.)
“Any party may obtain discovery . . . by taking in
California the oral deposition of any person, including any party to the
action. The person deposed may be a natural person, an organization such as a
public or private corporation, a partnership, an association, or a governmental
agency.”¿ (CCP § 2025.010.)
“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.” (CCP § 2025.480(a). See Stewart v.
Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015 n. 3 (the
only proper basis to instruct a deponent to not answer a question is an
objection based upon a privilege or manifestly irrelevant questions or
questions designed to harass.))
“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.” (CCP §
2025.480(i).)
ANALYSIS
Discovery Cutoff
Plaintiff
argues that since discovery has closed and it has not been reopened, Empire has
no right to have its motion heard. Plaintiff argues as follows, “By simply
hearing the motion to compel without first deciding whether discovery should be
reopened for that purpose under all of the relevant circumstances, [a] trial
court “transgresse[s] the confines of the applicable principles of law” (City
of Sacramento v. Drew, supra, 207 Cal.App.3d at p. 1297, 255 Cal.Rptr. 704)
and thereby abuse[s] its discretion. Id.” (Oppo. p.5.)
This citation is inapposite. Plaintiff cites a portion
of City of Sacramento v. Drew that addresses how an appellate court may
reverse a trial court decision denying attorneys’ fees under section 1021.5 for
a prejudicial abuse of discretion. Nothing in the portion of the case cited by
Plaintiff pertains to discovery.
The Court will briefly address relevant parts of prior
Minute Orders in an attempt to clear up confusion as to the discovery cutoff.
December 28, 2021 Minute Order
The December 28, 2021, Minute Order stated, “The Court
finds that discovery remains closed.”
January 19, 2022
On January 18, 2022, Defendant, Estate of Izat
Murataliev filed an ex parte application for an order permitting further
discovery and an order to continue trial.
In relevant part, the January 19, 2022, Minute Order
stated as follows:
The Ex Parte
Application FOR AN ORDER PERMITTING FURTHER DISCOVERY AND AN ORDER TO CONTINUE
TRIAL; DECLARATION OF DAN A. EVERAKES; [PROPOSED] ORDER filed by Estate of Izat
Murataliev, Decedent on 01/18/2022 is Granted. without prejudice as to items
listed in ex parte application and allowing the Estate to designate 2 experts
listed in the ex parte application.
The Ex Parte
Application TO CLARIFY DECEMBER 28, 2021 RULING; ALTERNATIVELY, TO ALLOW MOTION
FOR SUMMARY JUDGMENT TO BE HEARD WITHIN 30 DAYS OF TRIAL filed by ENTERPRISE
RENT-A-CAR COMPANY OF LA, LLC, EAN HOLDINGS, LLC on 01/18/2022 is Denied.,as
moot.
All parties are
ordered to meet and confer forthwith regarding discovery issue raised by the
Estate. All parties are also ordered to meet and confer regarding resolution of
the case as a whole, commencing no later than 3/7/2022 and completed no later
than 4/8/2022.
(Min. Order
1/19/2022.)
Further, attorneys for Defendant, Estate
of Izat Murataliev, filed an unchallenged notice of ruling on the ex parte
application on 1/19/2022 [this notice of ruling was only signed by Dennis S.
Newitt, attorney for Estate of Izat Murataliev, and was not signed by the Court]
that stated in relevant part:
Discovery is only re-opened as to
the items listed in the Estate’s Ex Parte Application, which are the treating
medical providers listed on Page 6 of the Estate’s Ex Parte Application, as
well as issuing subpoenas to obtain plaintiff’s pre-accident films,
radiological studies, and a second limited deposition of plaintiff as to
plaintiff’s current condition, treatment since March 2019 and plans for future
treatment. The Estate may also retain a billing expert and an expert
radiologist. The designation of these retained experts shall be governed by the
provisions of C.C.P. §2034 and the new trial date. Any other party may serve
supplemental expert witness lists only as to the Estate’s designation pursuant
to C.C.P. §2034.280 et seq.
If any party
objects regarding discovery that the party feels is not permitted, and the
parties cannot agree on the disputed discovery, the Court indicated it will
rule on the issue if properly before the Court.
The Court further
ordered the parties to meet and confer forthwith on undertaking and completing
the discovery allowed to the Estate, in particular the depositions of treating
health care providers. The parties are ordered to meet and confer regarding a resolution
of the case as a whole beginning on March 7, 2022, and completed by April 8,
2022.
With these
rulings, the Court indicated the Enterprise defendants’ Ex Parte Application
regarding the summary judgment motion is moot and did not rule on that application.
Defendant Estate was ordered to give notice.
(1/19/2022 Notice
of Ruling on Ex Parte Applications signed by Dennis S. Newitt.)
June 13, 2022 Minute Order
The
June 13, 2022 Minute Order states in relevant part:
The Ex Parte
Application for an order clarifying the discovery cutoff and expert dates as
they relate to new parties filed by Empire Fire and Marine Insurance Company on
06/10/2022 is Granted in Part.
The Ex Parte
Application PLAINTIFF DONARA GRIGORYANS NOTICE OF EX PARTE APPLICATION AND EX
PARTE MOTION FOR PROTECTIVE ORDER TO QUASH DEFENDANTS CCP 2034 DEMAND filed by
Donara Grigoryan on 06/09/2022 is Granted in Part.
The Estate of Izat
Murataliev is allowed to designate the 2 expert witnesses they have already designated
Empire Fire and Marine Insurance Company is allowed third party discovery
limited to the 25 subpoenas they have issued.
Empire Fire and
Marine Insurance company is also allowed to designate the expert witness they
have already designated.
Ex Parte discovery is to proceed per the CCP, as
indicated during the hearing. Fact discovery remains closed, except as
stated herein.
(Min. Order 6/13/2022.)
July 13, 2022 Minute Order
In
relevant part, the 7/13/2022 Minute Order states:
The Ex Parte
Application ALLOWING LIMITED THIRD-PARTY DOCUMENT DISCOVERY filed by Empire
Fire and Marine Insurance Company on 07/12/2022 is Granted in Part.
Counsel for Empire
Fire and Marine Insurance Company are ordered to e-file and e-serve on all
parties no later than the close of business on 7/20/2022 a list of the 20
subpoenaed documents that they seek authority from the Court to issue. The Ex
Parte is granted, subject to the list of subpoenas. Counsel are to indicate
which are supplemental to prior subpoenas and which are new and also how it
relates to the June 2022 accident of the Plaintiff or other newly discovered
information.
Currently pending
subpoenas are to be retracted and listed by 7/20/2022.
(Min. Order
7/13/2022.)
Here,
the Court does not find that fact discovery is completely closed for Empire or
any other party. Neither the minute orders nor notice of rulings say that when
reopening discovery that the Court was ONLY opening discovery for the Estate.
When the Court said a second limited deposition could be taken of Plaintiff as
to Plaintiff’s current condition and treatment since March of 2019 and plans
for future treatment, the Court only said this discovery can be done, not that
only one party can initiate it.
Standing
Plaintiff
cites the following portion of 2025.450(a) and adds emphasis as follows, “If,
after service of a deposition notice, a party to the action or an officer,
director, managing agent, or employee of a party, or a person designated by an
organization that is a party under Section 2025.230, without having served a
valid objection under Section 2025.410, fails to appear for examination, or to
proceed with it, or to produce for inspection any document, electronically
stored information, 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...”
Plaintiff argues that since Empire was not the party
that sought leave of Court, nor, since Empire was not the party that noticed
the deposition and Estate of Murataliev was the party that sought leave of Court
and noticed the deposition, Empire does not have standing to bring this motion
to compel.
As a preliminary matter, the Court notes that
Plaintiff cites the wrong statutory section. The section that Plaintiff cites –
2025.450(a) – pertains to compelling deponent’s attendance and testimony when deponent
fails to appear. The relevant code section is CCP §2025.480(a), which pertains
to when a deponent fails to answer a question.
CCP §2025.480(a) states, “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.”
Notably, CCP §2025.480(a) does not have the same
language with respect to “the party giving the notice…” that is seen in
2025.450(a). Instead, in 2025.480(a), the language used is “the party seeking
discovery…”
Here, the moving party, Empire, is seeking discovery. Since
Opposition did not cite any statutes or case law that indicates Empire lacks
standing, the Court does not find Plaintiff’s argument as to lack of standing persuasive.
2024.050(a)
Plaintiff cites the following portion of CCP
§2024.050(a), “On motion of any party, the court may grant leave to complete
discovery proceedings, or to have a motion concerning discovery heard, closer
to the initial trial date, or to reopen discovery after a new trial date has
been set. This motion shall be accompanied by a meet and confer declaration
under Section 2016.040. (b) In exercising its discretion to grant or deny this
motion, the court shall take into consideration any matter relevant to the
leave requested, including, but not limited to, the following:
(1) The necessity and the reasons for the discovery.
(2) The diligence or lack of diligence of the party
seeking the discovery or the hearing of a discovery motion, and the reasons
that the discovery was not completed or that the discovery motion was not heard
earlier.
(3) Any likelihood that permitting the discovery or
hearing the discovery motion will prevent the case from going to trial on the
date set, or otherwise interfere with the trial calendar, or result in
prejudice to any other party.
(4) The length of time that has elapsed between any
date previously set, and the date presently set, for the trial of the action.”
Plaintiff then argues that the prejudice to Plaintiff
in being subjected to a third deposition is severe and that this trial was
already continued past the initial 5-year period and permitting any further
discovery could potentially alter the trial date again could not be afforded.
Plaintiff further argues that while Empire alters its
claims that this motion is brought merely to seek questions related to a June
2022 accident, Empire’s true intentions in seeking the third deposition are
expressed in their previously filed Motion on June 10, 2022, in which they
sought Plaintiff’s third deposition.
The Court does not find Plaintiff’s argument
persuasive as Empire has adequately explained why the instant specific discovery
is appropriate.
Motion for Reconsideration
Plaintiff
also argues that the instant motion is an improper motion for reconsideration
of its June 10, 2022, ex parte application seeking the third deposition of
Plaintiff.
Plaintiff argues that “On June 10, 2022, Empire filed
an Ex Parte Application. In that Ex Parte Application Empire stated that it is
seeking to take Plaintiff’s Third Deposition. The Ex Parte stated in pertinent
part: ‘Murataliev also noticed Plaintiff's deposition, taken on June 6, 2022,
relating to her current condition and treatment since March 2019. Plaintiff
testified she had many office visits with different medical providers since
October 2019, none of which were identified in Plaintiff's responses to Empire
and no medical records were produced. Plaintiff's counsel objected to Empire
asking Plaintiff any questions relating to the allegations in the Complaint in
Intervention and instructed Plaintiff not to answer those questions taking the
position that discovery was closed (before Empire was ever a party) … (Daly
Decl., ¶¶ 12-15.).’ (Pl. Oppo. p.8-9.)
Therefore, Plaintiff argues that nearly three months
after Empire filed the ex parte, Empire is essentially asking this Court to
reconsider its prior motion.
Plaintiff further argues that Empire would have had to
timely move under CCP §1008 for the Court to reconsider the prior motion, per CCP
§1008(a), “within 10 days after service upon the party of written notice of
entry of the order and based upon new or different facts, circumstances, or
law, make application to the same judge or court that made the order, to reconsider
the matter and modify, amend, or revoke the prior order. The party making the
application shall state by affidavit what application was made before, when and
to what judge, what order or decisions were made, and what new or different
facts, circumstances, or law are claimed to be shown.”
Plaintiff further states, “According to the plain
language of the statute, a court acts in excess of jurisdiction when it grants
a motion to reconsider that is not based upon “new or different facts,
circumstances, or law. Gilberd v. AC Transit, 32 Cal.App.4th 1494, 1500.”
(Oppo. p. 9.) Plaintiff thus argues Empire failed to make a timely motion for
reconsideration.
While Plaintiff is correct about the procedure and
timeline on a Motion for Reconsideration, Plaintiff’s characterization of the
Motion now before the Court is inaccurate.
Empire is asking the Court to enforce its prior Order, not to reconsider
it.
A Third Deposition
Plaintiff
argues that Plaintiff has already had two depositions and a third deposition
should not be permitted of Plaintiff.
Plaintiff argues as follows:
Code of Civil
Procedure § 2025.610(a) prohibits a party from taking more than one deposition
of a person. The section amplifies that once a party has taken the deposition
of a person, "neither the party who gave, nor any other party who has been
served with a deposition notice ... may take a subsequent deposition of that
deponent."
The exception is
identified in CCP 2025.610 which requires a showing of good cause for taking of
a second deposition. (See CCP § 2025.610 (b)). While Empire was not a party at
the time of the first deposition, they received notice for the second
deposition and were present to inquire on the limited area permitted by the
Court.
(Oppo. p. 10.)
Plaintiff also states that Empire already
subpoenaed Ms. Grigoryan’s insurance records for the new accident thereby
Empire would be able to obtain said discovery they seek without subjecting
Plaintiff to yet another deposition.
The Court does not find this argument
persuasive.
Scope of Questions at Second Deposition on
June 6, 2022
Plaintiff argues that the questions that
Empire seeks to compel from the second deposition are outside the scope of the
Court’s order.
Plaintiff argues as follows:
The Court in its
January 19, 2022 order allowed the Estate of Murataliev to obtain a limited
second session of Plaintiff’s deposition. In that Order the Court did not
permit prior accident discussions or prior injury discussions. The order was
very clear. (Exhibit C). Yet, in deposing Plaintiff at her June 2022 deposition
it was evident that Defense counsel and Empire were attempting to elicit from
Plaintiff questions regarding her prior auto accidents specifically and what if
at all her current physicians knew about the prior accidents.
This Court should
not allow Empire to attempt to back door further questioning under the guise
that it may have been something discussed by Plaintiff in a recent visit.
Plaintiff went through hours of questioning regarding her recent physicians,
her treatment, and her future treatment. Empire does not want to stop there it
wants to poke further into what prior and subsequent accidents were discussed
with these physicians. That should not be permitted by this Court. It is also
significant that Defendant, Estate of Murataliev has already deposed all the
physicians that Plaintiff sought treatment with after March 2019, namely Dr.
Mobin and Defendant Estate of Murataliev also noticed but did not take the
deposition of Dr. Nourian in this action. Any further questioning Defendant or
Empire deems necessary were already asked of her current treating physician or
can be asked at trial.
(Oppo. p. 10-11.)
The conduct of Plaintiff’s counsel at this second
deposition of the Plaintiff has led to the necessity of a third session. Plaintiff’s counsel’s interpretation of this Court’s
prior Orders re: discovery is far too narrow and is unsupported by the
record. Further, Plaintiff’s counsel had
no legal basis for instructing plaintiff not to answer several questions at the
deposition. See, infra.
TENTATIVE RULING
Generally, this Court agrees with Empire’s
argument that Plaintiff can be compelled to answer questions about her post-March
2019 medical care, current physical condition, and most recent June 2022 car
accident that allegedly occurred after the June 6, 2022, deposition.
However, Empire’s
motion fails to state with specificity to which questions it wants answers
compelled. Empire cites several sections with pages and lines, and for many of
the referenced sections, there are multiple questions. Empire needs to clarify
at the hearing as to which specific questions it is seeking further answers.
The Court agrees with Plaintiff
that Empire cannot inquire into matters which occurred before March 2019;
however, the Court notes that anything related to Plaintiff’s current medical
condition, treatment after March 2019, and alleged June 2022 car accident that
occurred after the deposition can be the subject of present inquiry.
Further, the Court
agrees with Empire that it was improper for Plaintiff’s counsel to instruct
Plaintiff to not answer the questions that were being asked during the
deposition. (See Stewart v. Colonial Western Agency, Inc. (2001) 87
Cal.App.4th 1006, 1015 n. 3 (the only proper basis to instruct a deponent to
not answer a question is an objection based upon a privilege or manifestly
irrelevant questions or questions designed to harass.))
SANCTIONS
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. (CCP §2025.480(j).)
The moving party did not request sanctions in their
notice of motion, and the moving party did not state their hourly fee in its
attached declaration. The only reference in moving party’s paper to sanctions
is “Monetary sanctions are mandatory unless the Court finds that the deponent
acted with substantial justification. (Cal. Civ. Proc. Code § 2025.450(g)(1).)
(Id.)” (Empire Mot. p. 14.) The code section that Empire refers to is not the
correct section with respect to sanctions. Moving party referenced 2025.450,
but the proper section would be 2025.480. Further, even in Empire’s moving
papers, other than the citation above, Empire did not contain an argument on
sanctions. Thus, the Court finds in its discretion that it would be unjust to
award sanctions here.
JOINDER
On Monday,
September 26, 2022, Defendants Enterprise Rent-A-Car Company of Los Angeles
LLC, and EAN Holdings LLC filed a late joinder in support of Intervenor,
Empire’s, motion to compel answers to June 6, 2022, deposition questions and to
permit discovery about Plaintiff’s June 2022 accident for all the reasons set
forth in Intervenor’s notice of motion, memorandum of points and authorities,
and Reply. The joinder is
immaterial in that this ruling applies to all parties.