Judge: Donald F. Gaffney, Case: Lepou v. Verduzco, Date: 2022-07-27 Tentative Ruling

TENTATIVE RULING: 

Motion 1: Motion for Protective Order

Plaintiff Victoria Lynn Lepou moves for a protective order that Plaintiff’s deposition not be taken until after Defendant Vasoking de Mexico (Doe 1) produces certain photographs and video of the incident, and after the second deposition session of the driver Defendant Andres Valerio Verduzco. For the following reasons, the motion is DENIED.

“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) The burden is on the party seeking the protective order to show “good cause” for whatever order is sought. (Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255; Stadish v. Super. Ct. (1999) 71 Cal.App.4th 1130, 1145.) “The concept of good cause . . . calls for a factual exposition of a reasonable ground for the sought order.” (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.) Proof on the question of good cause is presented through declarations and counter-declarations. (Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 389.)

Plaintiff argues that fundamental fairness requires Plaintiff be able to refresh her recollection before the deposition process. Plaintiff relies on Filipoff v. Super. Ct. (1961) 56 Cal.2d 443 to support her contention that she needs to review photographs and video evidence of the incident before sitting for deposition.

In Filipoff, the deponent answered several questions at deposition subject to the limitation that he could not recall the full facts and that he could answer more fully if his memory were refreshed by the notes called for in the subpoena duces tecum. The deponent, however, refused to so refresh his memory by reviewing those notes, which he had brought to the deposition. (See Filipoff, supra, 56 Cal.2d at p. 319-320.) Supreme Court issued a peremptory writ, finding the proponent was entitled to an order requiring the witness to refresh his recollection at such time as his deposition is continued. (Id., at p. 321.)

Here, Plaintiff fails to show good cause for the requested relief. This case is distinguishable from the situation in Filipoff, where the deponent willfully refused to comply with the subpoena. In this case, Plaintiff is not willfully refusing to refresh her memory. Instead, she wishes to refresh her memory with an opposing party’s deposition testimony and documentary evidence prior to her own deposition. Plaintiff’s desire to refresh her recollection does not constitute good cause for the requested relief.

Defendant’s evidentiary objections were not material to the disposition of this motion. (See Code Civ. Proc. § 437c(q).)

Defendant Vasoking de Mexico (Doe 1) to give notice.

Motion 2: Motion to Compel Deposition

Plaintiff Victoria Lynn Lepou moves to compel the deposition of Attorney Marc S. Soble. For the following reasons, the motion is DENIED.

“Depositions of opposing counsel are presumptively improper, severely restricted, and require ‘extremely’ good cause—a high standard.” (Carehouse Convalescent Hospital v. Super. Ct. (2006) 143 Cal.App.4th 1558, 1562 [citing Spectra-Physics, Inc. v. Super. Ct. (1988) 198 Cal.App.3d 1487, 1493; Trade Center Props., Inc. v. Super. Ct. (1960) 185 Cal.App.2d 409, 411].)

Courts apply a three-prong test in considering the propriety of attorney depositions. (Carehouse, supra, 143 Cal.App.4th at p. 1563.) “First, does the proponent have other practicable means to obtain the information? Second, is the information crucial to the preparation of the case? Third, is the information subject to a privilege?” (Id. [citing Spectra–Physics, supra, 198 Cal.App.3d at pp. 1494–1495, 1496; Estate of Ruchti (1993) 12 Cal.App.4th 1593, 1601].) Any of the prongs may be sufficient to defeat the attempted attorney deposition. (Id.) The proponent has the burden of proof on the first two prongs, and the party opposing the discovery has the burden to show preliminary facts to support work product doctrine or attorney-client privilege apply. (Id.)

Here, Plaintiff fails to meet the high burden to show the propriety of the proposed deposition.

Defendant’s evidentiary objections were not material to the disposition of this motion. (See Code Civ. Proc. § 437c(q).)

Defendant Vasoking de Mexico (Doe 1)’s request for sanctions is granted. (Code Civ. Proc., § 2023.030(a).) Plaintiff is ordered to pay sanctions in the amount of $450 to Defendant Vasoking de Mexico (Doe 1), within 30 days of the service of the notice of ruling.

Defendant Vasoking de Mexico (Doe 1) to give notice.

Motions 3-4: Motion to Compel Deposition and Production at Deposition

Plaintiff Victoria Lynn Lepou moves to compel Defendant Andres Valerio Verduzco to appear for a second session of deposition, provide further responses, and to produce documents at deposition. For the following reasons, the motion is GRANTED.

Subsequent Session of Deposition.

Plaintiff moves to compel Defendant Verduzco to appear for a second session of deposition.

Code of Civil Procedure Section 2025.610(b) provides that for good cause shown, a judge may grant leave to take a subsequent deposition, and the parties, with the deponent’s consent, may stipulate that a subsequent deposition be taken.

Here, Plaintiff shows good cause for the second session. At the time of Mr. Verduzco’s first session, he did not or could not definitively represent that photographs requested in the deposition notice would be produced to Plaintiff in time for the deposition to proceed. (See Kamil Decl., Ex. D at 55:5-56:17.) Plaintiff is entitled to proceed with questioning after those requested photographs are produced.

Further Response to Deposition Questions.

Plaintiff moves to compel further response to six questions to which Verduzco was instructed not to answer. Mr. Verduzco objected on the basis of attorney-client privilege and work product doctrine.

California Code of Civil Procedure Section 2025.480 provides in part: “If a deponent fails to answer any question or to produce any document . . . 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.” (Code Civ. Proc., § 2025.480(a).) Further, “[i]f 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); accord Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1561.) A deponent who has objected to a question and refused to answer bears the burden of justifying such refusal on the motion to compel. (San Diego Professional Ass’n v. Super. Ct. (1962) 58 Cal.2d 194, 199.)

The attorney-client privilege applies only to confidential communication made in the course of the attorney-client relationship. (Evid. Code, § 952.) The privilege, however, “does not protect disclosure of underlying facts which may be referenced within a qualifying communication.” (State Farm Fire & Casualty Co. v. Super. Ct. (1997) 54 Cal.App.4th 625, 639 [citing Aerojet-General Corp. v. Transport Indemnity Insurance (1993) 18 Cal.App.4th 996, 1004-1005].) For example, the privilege does not protect “independent facts related to a communication; that a communication took place, and the time, date and participants in the communication.” (2,022 Ranch, LLC v. Super. Ct. (2003) 113 Cal.App.4th 1377 [citing State Farm Fire & Casualty Co. v. Super. Ct. (1997) 54 Cal.App.4th 625, 640], disapproved on other grounds by Costco Wholesale Corp. v. Super. Ct. (2009) 47 Cal.4th 725.)

Similarly, the work product doctrine protects “any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories” (Code Civ. Proc., § 2018.030(a)), but does not protect independent facts with which the court or propounding party may evaluate the asserted protection. (Coito v. Super. Ct. (2012) 54 Cal.4th 480, 499–500.)

Here, Mr. Verduzco fails to justify his objections. The six questions at issue ask for underlying facts relating to the attorney-client meeting. The questions do not request the content of any confidential communication or any writing that reflects attorney work product.

Compelling Production at Deposition

Plaintiff moves to compel production in compliance with deposition notice RFP Nos. 7 and 20. RFP No. 7 requests copies of all photographs depicting any damage to the vehicles or location of the incident. RFP No. 20 requests all video recordings of the subject accident. Defendant Vasoking objects to both requests on the ground the request is unjustly burdensome, harassing, and oppressive—as the request seeks the production of documents that have been previously requested.

A motion to compel production pursuant to deposition notice where the deponent has served timely objections must be filed less than 60 days from the completion of the deposition. (Code Civ. Proc., § 2025.480(b).)

Here, the motion is timely made.

A motion to compel production of documents described in the deposition notice “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.” (Code Civ. Proc., § 2025.450(b)(1).)

Here, good cause is apparent on the face of the requests at issue. Defendant Vasoking fails to justify its objections. Mr. Verduzco testified that he believes he took three or four photographs of the incident. It is not unduly burdensome, harassing, or oppressive to have the witness produce those photographs at deposition. To the extent there is any video recording of the incident, Defendant fails to show that it is unduly burdensome, harassing, or oppressive to have the witness produce that video.

Plaintiff’s request for sanctions is granted. (Code Civ. Proc., § 2025.450(g)(1).) Defendant Vasoking de Mexico is ordered to pay sanctions in the amount of $1,520 to Plaintiff Victoria Lynn Lepou, within 30 days of the service of the notice of ruling.

Defendant’s evidentiary objections were not material to the disposition of this motion. (See Code Civ. Proc. § 437c(q).)

Plaintiff to give notice.

Motion 5. Motion to Compel Further Responses to Special Interrogatories.

Defendant Vasoking de Mexico (Doe 1) moves to compel further responses from Plaintiff Victoria Lynn Lepou to Special Interrogatories (Set One). For the following reasons, the motion is DENIED.

Code of Civil Procedure Section 2030.210(a) requires that the response to each interrogatory must contain an answer with the information sought, an exercise of the party’s option to produce writings, or an objection. Each response must be “complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.220(a).) In responding to an interrogatory, if the responding party “does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Code Civ. Proc., § 2030.220(c).) “If only partial answers can be supplied, the answers should reveal all information then available to the party. If a person cannot furnish details, he should set forth the efforts made to secure the information. He cannot plead ignorance to information which can be obtained from sources under his control.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.)

A party may move to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under California Code of Civil Procedure section 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300(a); 2031.300(a) [re RFPs].)

Here, Plaintiff’s responses reflect her belief that the evidence to support her contentions is in Defendant’s possession.  Plaintiff also responds that she has not yet taken the deposition of Defendant’s PMK. The court finds the responses not to be evasive or incomplete and to comply with Plaintiff’s obligations under the Code.

Plaintiff to give notice.