Judge: Deborah C. Servino, Case: 30-2021-01179814, Date: 2022-12-16 Tentative Ruling

Plaintiffs Brett Boyer and Amanda Boyer’s motion to compel deposition answers of Defendant Sun Engineering Services, Inc.’s (“Defendant”) employee, Russell Turley, is granted.

If the deponent has refused to answer, the examiner may file a motion to compel under Code of Civil Procedure section 2025.480.  A deponent who has objected to a question and refused to answer bears the burden of justifying such refusal on the motion to compel. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶  8:814.) As with discovery generally, deposition questions may relate to “any matter, not privileged, that is relevant to the subject matter . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) As explained in a well-regarded practice guide, counsel should “not interpose objections on the ground of hearsay, opinion evidence, materiality, etc. Nothing is gained because these are not valid grounds for objecting to discovery.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 8:729.1 [emphasis in original].)

Plaintiffs move for an order compelling Turley to provide answers to the following eight questions:

1. “Mr. Turley, would you agree with me that youʹre not qualified to draft a Traffic Control Plan?”

2. “Would you agree with me that youʹre not qualified to determine adequate lengths of taper zones?” 

3. “Mr. Turley, would you agree with me where the General Notes say traffic plan designed per California MUTCD, latest edition, and WATCH 2016 are untrue statements?”

4. “Would you agree with me that the Traffic Control Plan was not designed per the standards set forth by the California MUTCD?” 

5. “Would you agree with me that this Traffic Control Plan was deficient in that the taper zone was too short?”

6. “Would you agree with me that a speed limit of 35 miles per hour is too fast for this Temporary Traffic Control Plan?”

7. “Okay. Going back to Exhibit 138, would you agree with me that on Exhibit 138 the taper for southbound traffic in a 125‐foot taper zone was too short for 35 miles per hour?”

8. “And under the MUTCD, if thatʹs a shifting taper, itʹs not long enough at a speed of 35 miles per hour; correct?”

Defendant objected to all eight questions on the grounds that all eight questions purportedly “call[] for an expert opinion,” and the second question both “calls for expert opinion” and is “vague and ambiguous.” Defendant claims the testimony was “privileged,” because “if Mr. Turley has an expert opinion, it is privileged under the work product doctrine as expert designations have not yet been served, and Mr. Turley has not been designated as an expert in this matter.” (Def. Response to Sep. St. at p. 4 [ROA 294]; Opp. at pp. 2-3 [citing Code Civ. Proc., § 2018.030].)

Turley was instructed not to answer the eight questions at his deposition.  This instruction was improper. Even if Turley was being asked to provide an opinion that he was not competent to provide, that was not a basis for instructing Turley not to respond. Objections based on competency, relevancy or materiality or admissibility at trial are not even necessary, because they “are not waived by failure to make them before or during the deposition.” (Code Civ. Proc., § 2025.460, subd. (c).) Certain expert reports and communications may be privileged. (See City & County of San Francisco v. Superior Court In and For City and County of San Francisco (1951) 37 Cal.2d 227, 237 [information divulged by physician to client’s attorney, for the purpose of aiding attorney in preparation for lawsuit, was privileged].)  However, the information sought by the subject questions do not fall within that scenario.  If Turley was unable to answer these questions, (e.g., because he did not have knowledge on these matters), he could have answered, “I don’t know.”

The objections are overruled. Turley is ordered to answer the eight questions at issue within 15 days of the notice of ruling, or on a later date agreed to by Plaintiffs. Plaintiffs may also agree to written responses in lieu of oral testimony.

Plaintiffs shall give notice of the ruling.