Judge: Douglas W. Stern, Case: 21STCV13995, Date: 2023-02-15 Tentative Ruling

Case Number: 21STCV13995    Hearing Date: February 15, 2023    Dept: 68

Rosa Lucio vs. Superior Grocers, Inc., Case No. 21STCV13995

Motion to Compel Plaintiff to Answer Deposition Questions

Moving Party – Defendant Super Center Concepts, Inc.

Responding Party – Plaintiff Rosa Lucio

Moving Party’s Position

Defendant Super Center Concepts, Inc., (Defendant) filed this motion on January 20, 2023, to compel Plaintiff to answer deposition questions from a deposition that took place on September 29, 2022. This Motion is resolved by application of the mandatory 60 day period for bringing this motion set forth in C.C.P. § 2025.480(b). Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 321.

Plaintiff Rosa Lucio (Plaintiff) did not answer questions that her attorney objected to during the deposition. Defendant alleges in the body of its motion that its attempts to meet and confer with Plaintiff were ignored. Further, Defendant argues that it is entitled to discovery of information relevant to the claims at issue and within the permissible scope of discovery. Defendant also argues that Plaintiff has waived her right to privacy regarding her medical conditions, Defendant’s right to discover the information outweighs any privacy right. Finally, Defendant argues that Plaintiff’s attorney client-objections are without merit.

The questions to which Defendant seeks further answers are the following:

·                     Documents requested by Defendant that Plaintiff is obligated to produce pursuant to CCP section 2025.480

·                     Question regarding any past leg issues or pain that Plaintiff had prior to the slip and fall incident, as Defendant alleges this is information is relevant

·                     Question about any past surgeries that Plaintiff had in the two years prior to the incident, which Defendant argues is relevant information

·                     Question about any medications that Plaintiff was prescribed a year before the incident, which Defendant argues is relevant information

·                     Question about when Plaintiff personally decided to file a lawsuit; Defendant’s reasoning for this question is unclear, beyond that this would not be protected by the attorney-client privilege

·                     Question about when Plaintiff retained counsel; once again, Defendant’s reasoning unclear, beyond not protected by attorney-client privilege

Defendant has also requested monetary sanctions in the sum of $5,600.00, but Defendant did not provide authority or factual justification (until the late-filed reply and declaration, see below) for this request.

Plaintiff’s Opposition

Plaintiff’s primary opposition to Defendant’s motion is that Defendant filed the motion late and did not include a meet and confer declaration pursuant to C.C.P. § 2025.520, C.C.P. § 2025.480.

Section 2025.480(b) states that the 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.”

The deposition was held on September 29, 2022. The court reporter sent notice under CCP section 2025.520 that the transcript was ready for review on October 20, 2022. The thirty day period for making changes to the transcript under Section 2025.520 expired on November 19, 2022. That was the latest date for completion of the record of the deposition.  Sixty days later is January 18, 2023. Defendant filed its motion on January 20, 2023.

Plaintiff contends that Defendant filed its motion to compel late and it should be denied as untimely. Additionally, Defendant did not include a meet and confer declaration under Section 2016.040 with its motion to compel, as is required by Section 2025.480(b).

The following are Plaintiff’s substantive objections to the questions to which Defendant is seeking further answers:

·                     Plaintiff objects to the request for more documents on the basis that she has already produced all responsive non-privileged documents in her possession, custody, and control to date

·                     Plaintiff objects to the questions about past issues or pain with her leg because the injury was specific to her knee, so the request is too broad

·                     Plaintiff objects to the question about any surgeries in the prior two years on the basis that it is too broad and an invasion of her privacy

·                     Plaintiff objects to the question about medication prescribed a year before the incident because the question was broad, not tailored to medications specifically for pain, and invades Plaintiff’s privacy

·                     Plaintiff objects to the question about when she personally decided to file a lawsuit because Defendant has not established any facts showing that the question does not seek privileged communications and because the question is not reasonably calculated to illicit relevant admissible information

·                     Finally, Plaintiff objects to the question about when she retained counsel as seeking privileged information and being unlikely to lead to admissible evidence

Defendant’s Reply

Defendant’s reply, filed a day late on February 8, 2023, argues that the deadline for filing the motion was actually January 20, 2023, because that was 60 days after the court reporter sent out a letter on November 21, 2022, informing the parties that the transcript was complete.

Next, Defendant argues that its failure to file a meet and confer declaration was simply a clerical error and filed the declaration with its reply. Defendant did not provide any authority for why the Court should accept this late filing.

Defendant maintains its request that Plaintiff produce documents, despite Plaintiff’s contention that she has produced everything, but Defendant does not explain in its motion or reply what the documents are that it is still seeking.

As for Defendant’s questions regarding information related to Plaintiff’s leg, medications one year prior to the incident, and surgeries two years before the incident, Defendant contends that these are directly related to Plaintiff’s claims of hip and knee pain. However, Defendant does not explain how the generalized questions regarding medications and surgeries are specific to Plaintiff’s leg and hip. Defendant addresses the privacy issue, but still does not explain the broad questions about medications and surgeries.

Defendant addresses Plaintiff’s arguments about the attorney-client privilege, but Defendant does not state how the questions about when Plaintiff decided to file suit and when she retained counsel are relevant.

Defendant did not include any justification for its request for sanctions until its late filed reply and declaration.

Request for Judicial Notice

Defendant has requested that the Court take judicial notice of documents in this case file. It is unnecessary to request that the Court to take judicial notice of the records in this case file.  Those records are available to the Court for whatever proper purpose it might use the case file.

Analysis

I.                   Timeliness of Motion

CCP § 2025.480 requires that a motion to compel deposition be filed no later than sixty days after the completion of the record of deposition. That deadline is mandatory. The 60-day deadline was mandatory. Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 321, Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1030-1035.

The parties disagree when that sixty days would commence. Plaintiff argued in opposition that it expired January 18, 2023. Defendant argued in its reply that it had until January 20, 2023, the day it filed the motion.

There is a lack of relevant authority on this question. However, The court reporter notified the parties know that the transcript was ready for review on October 20, 2022. The witness had 30 days to make any changes. The last day for review was November 19, 2022. Regardless of when the letter was sent by the court reporter letting them know that the transcript was complete, it is logical that the transcript would be deemed completed on the final day to make changes to the transcript, which was November 19. If no changes could be made after that date, then the record would be complete on that date. This would mean that the 60 days would be up on January 18. The Court does not believe it would be appropriate in this case to treat a letter from the court reporter notifying the parties of the signing or non-signing of the transcript as the relevant date to start the running of the 60 day period, as that would effectively allow the court reporter to delay the start period merely by failing to quickly mail a letter.  It is more reasonable in this case to hold that the expiration of the date to review the transcript is the relevant date for commencing the sixty day period.

Therefore, Defendant’s motion was untimely filed, and Defendant’s motion must be denied.

II.                Lack of Meet and Confer Declaration

CCP § 2025.480 also requires that a motion to compel deposition shall be accompanied by a meet and confer declaration. Defendant did file a meet and confer declaration with its moving papers. Defendant did not file a meet and confer declaration until it filed its (late) reply, four Court days before the hearing on this matter. Defendant claimed in its reply that this was the result of a clerical error, but Defendant did not provide any authority stating that this was an excusable reason to have not filed the meet and confer declaration with its motion.

Further, there is authority that all supporting documents for a motion to compel deposition must be filed and served prior to the 60 day deadline. In Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, the Court found that a motion to compel further responses was not “made” until required supporting papers were served. The meet and confer declaration could be considered a supporting paper for a motion to compel deposition. Therefore, the motion would not be considered made until the declaration was filed and served, which Defendant did not do until four days before the hearing.

Even if the Court were to consider the meet and confer declaration filed with the reply, it would still affect the timeliness of the overall motion.

III.             Sanctions

Because the Court is denying Defendant’s motion to compel, Defendant’s request for sanctions is also denied.

Conclusion

Defendant’s motion to compel Plaintiff’s answers to deposition questions is DENIED as it was untimely and lacked a meet and confer declaration at the initial filing.