Judge: Frank M. Tavelman, Case: 22BBCV01063, Date: 2024-11-08 Tentative Ruling

Case Number: 22BBCV01063    Hearing Date: November 8, 2024    Dept: A

MOTION TO COMPEL DEPOSITION

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Perry Moore (Plaintiff) brings this action against Jose Arriolas dba Arriolas Management Services and Greyhound Lines, Inc. (Defendants). Plaintiff alleges he was assaulted by an employee of Defendants when attempting to purchase a ticket at North Hollywood Greyhound Bus Lines office.

Before the Court is a motion by Defendants to compel Plaintiff’s deposition, which was suspended by Plaintiff’s counsel on July 22, 2024. Plaintiff opposes the motion and Defendants reply.

ANALYSIS: 

Facts

This motion drives from the Plaintiff’s July 22, 2024 deposition. Defendant’s counsel has demonstrated that this deposition was properly noticed, and that Plaintiff served no objections. (Avetisove Decl. ¶ 3, Exh. A.) On July 22, 2024, the deposition proceeded as noticed. (Avetisove Decl. ¶ 4.) Defendant states, and the deposition transcript confirms, that Plaintiff raised no objections prior to the commencement of the deposition. (Avetistove Decl. ¶ 5, Exh. B.)

At some point in the deposition, Defendants’ counsel attempted to introduce a video purportedly of the incident which forms the basis of this lawsuit. (Avetisove Decl., Exh. B at p. 56.) Plaintiff’s counsel then halted the deposition proceedings stating, “…we were not given this video.” (Id.) Plaintiff’s counsel further stated, “I might not allow this depo to go forward and I will need to  review some documents because we were told that you -- in the response that you guys don't have any video and you're not aware of any video.” (Id.) Defendants’ counsel then informed Plaintiff’s counsel that either the deposition could go forward on other matters, or that Plaintiff could suspend the deposition and move the Court for relief. (Id. at 58.) Plaintiff’s counsel responded that she was of the opinion that she needed to suspend the deposition and seek evidentiary sanctions against Defendants.

In explaining the above interaction, Plaintiff’s counsel explains that Defendants have previously disclaimed the existence of any video capturing the incident. Plaintiff’s counsel states that Defendants’ response to their Form Interrogatory No. 12.4 produced no video. Plaintiff’s Interrogatory NO. 12.4 reads in relevant part as follows:

Do you or anyone acting on your behalf know of any photographs, films, or videotapes depicting any place, object, or individual concerning the incident or plaintiff’s injuries?

(Ghermezian Decl. ¶ 5, Exh. A.)

Greyhound’s response to this interrogatory was a series of objections without Yes or No answer. To the extent that Plaintiff believed this response inadequate they were entitled to file a motion to compel further responses. Plaintiff did not do so.

Arriolas’ response was as follows:

Responding Party objects to this interrogatory on the grounds that it seeks information protected from disclosure by the attorney-client privilege and/or attorney work product doctrine. Subject to and without waiving the foregoing objection, Responding Party responds as follows: Upon and belief, CCTV footage of the incident may have been upload to the Los Angeles Police Department.

Plaintiff also filed no motion to compel further responses.

Plaintiff’s counsel also states that Arriolas specifically denied video of the incident existed when asked at his June 28, 2024 deposition. The relevant portion of Arriolas’ deposition is as follows:

Q: Are you aware of any video surveillance footage of the alleged incident involving my client at your facility on December 18, 2020?

A: Yes.

Q: Do you have access to the surveillance footage?

A: Not anymore.

Q: Did you keep a copy for yourself?

A: I did not.

Q: What did you do with the video surveillance footage?

A: The system only keeps the video for certain days, and after that it gets erased.

Q: How many days did you have access to the video before it was erased?

A: It depends on the memory of the DVR. Maybe about 15 days.

Q: Did you ever provide a copy to the police?

A: I did not.

Q: Did you ever provide any copy to any 5 authorities or investigators?

A: I did not.

(Ghermezian Decl., Exh. B at p. 9-10.)

Plaintiff’ counsel states they still have not been provided the video. (Ghermezian Decl. ¶9.)

Defendants maintain that they obtained the video of the incident through subpoena to the Los Angeles Police Department (LAPD). (Avetisove Decl. ¶ 7.) It is unclear when this subpoena was issued and when the video was obtained. In their reply, Defendants state that the video has been previously produced to Plaintiff as an Exhibit to the August 25, 2024 deposition of LAPD officer Jordan Head. (Avetisove Reply Decl. ¶ 2.) Defendants’ counsel also states he sent a copy of the video to Plaintiff’s counsel via email on September 10, 2024. (Avetisove Decl., Exh. A.) The Court notes that this alleged production would have occurred long after Plaintiff’s deposition. Further, the email attached as Exhibit A is simply Defendants’ counsel confirming he is available for a call from Plaintiff’s counsel regarding the video. There is no attachment evidenced by this exhibit. 

Discussion

The Court begins its discussion by noting that Defendants’ motion is more properly brought pursuant to C.C.P. § 2025.480 than C.C.P. § 2025.450.

C.C.P. § 2025.450 provides:

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, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

Here, Plaintiff did not fail to appear or fail to proceed with the examination as contemplated by the statute. It could be argued that the improper unilateral suspension of the deposition by Plaintiff’s counsel, which the Court will discuss further below, constitutes a failure to proceed. However, this understanding is inconsistent with C.C.P. § 2025.480 which specifically contemplates a motion to compel a deposed party to answer questions which they initially refused to answer.

C.C.P. § 2025.480 permits a party to seek a motion to compel deposition answers where a deponent fails to answer any question or produce any document under their control. “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.” (C.C.P. § 2025.480(i) [emphasis added].) The moving party is required to lodge a certified copy of the deposition transcript portions relevant to the motion. (C.C.P. § 2025.480(h).) A motion made pursuant to C.C.P.§ 2025.480 must be made no later than 60 days after the completion of the record of the deposition. (C.C.P.§ 2025.480 (b).) The Court notes that Defendants’ motion is within the statutory time frame and is accompanied by certified copies of the relevant deposition transcript.

Given C.C.P. § 2025.480 specifically contemplates the resumption of a deposition after a party has refused to answer questions, the Court finds it to be the more applicable statute in this instance. As such, the question before the Court on this motion is whether the answers sought are subject to discovery such that Plaintiff can be compelled to resume the deposition. The Court finds this determination to be rather straightforward.

Defendants’ counsel seeks to resume the deposition to question Plaintiff (1) about the video allegedly depicting the incident and (2) about medical treatment. Plaintiff’s answers to these questions are undoubtedly subject to discovery as they are facially relevant to Plaintiff’s claims regarding the incident and the injuries sustained from it. (See C.C.P. § 2017.010 [“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.’].) Here, Plaintiff has not alleged that the information sought is subject to privilege or that it is not relevant to the subject matter of this action.

Plaintiff’s sole argument in opposition is that he would be prejudiced by being deposed about the video before he and his counsel could review it. This argument does not speak to the discoverability of the information Defendants seek. It instead speaks to an attempt to shield Plaintiff from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. The Discovery Act makes clear that such efforts are to be pursued through a promptly filed motion for a protective order. (C.C.P. § 2025.420.) Further, C.C.P. § 2025.470 explicitly states that the only grounds upon which a party may unilaterally suspend a deposition is to enable the party to move for a protective order.

Here, Plaintiff has not moved for a protective order in the months since his deposition was suspended. In moving for a protective order, the moving party bears the burden of demonstrating good cause. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) As Plaintiff has not moved for a protective order, it follows that he has not carried his burden of demonstrating good cause for the Court to issue one. C.C.P. § 2025.420 contains no provision for the Court to issue a protective order on its own motion or in the interests of justice. The law is clear that if Plaintiff seeks to avoid being questioned in a deposition about certain issues, it is incumbent upon him to seek affirmative relief from the Court to that effect. Plaintiff did not do so here.

In short, the Court finds the matters upon which Defendants seek to depose Plaintiff are subject to discovery. Given this finding, C.C.P. § 2025.480 requires the Court order Plaintiff’s deposition to be resumed. Accordingly, Defendants’ motion is GRANTED. The parties are ordered to meet and confer as to a mutually acceptable date for Plaintiff’s deposition to resume within the next 30 days. If the parties are unable to agree on a date, they are to call the Court and a date will be provided for them.

Sanctions

C.C.P. § 2025.480 provides, “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.” For reasons that will be elaborated below, the Court finds that Plaintiff’s opposition to this motion was not without substantial justification.

Although it did not factor into the Court’s ruling as to whether Plaintiff’s deposition must proceed, the ambiguity surrounding the production of the video causes significant concern. It is not clear from Defendants’ submissions that the video was ever provided to Plaintiff’s counsel. Defendants’ counsel states that the video was attached as an Exhibit to the August 15, 2024 deposition of Officer Head and was shown at his deposition. Defendants do not attach the notice of that deposition or state whether Plaintiffs’ counsel were present at that deposition. Nor would it matter if they were, as this deposition occurred well after Plaintiff suspended his deposition.

California does not require the disclosure of later obtained information/documents unless a party requests them via supplemental discovery. (See C.C.P. §§ 2030.070, 2031.050.) Regardless, it is clear here that Plaintiffs’ deposition was the first time Plaintiff’s counsel became aware that a video of the incident existed. Although Plaintiff’s counsel ultimately did not follow the correct procedure for the suspension of the deposition, their concerns around disclosure appear were not without reason. While the Court finds Plaintiff’s argument unpersuasive in opposition, the circumstances are such that Plaintiff was justified in making the opposition. As such, the Court declines to award sanctions in accordance with either party’s request.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Jose Arriolas dba Arriolas Management Services’ Motion to Compel Deposition came on regularly for hearing on November 8, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

DEFENDANT’S MOTION IS GRANTED.

THE PARTIES ARE ORDERED TO MEET AND CONFER AS TO A MUTUALLY ACCEPTABLE DATE FOR PLAINTIFF’S DEPOSITION TO RESUME WIHIN THE NEXT 30 DAYS.

NO SANCTIONS ARE AWARDED.

DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: November 8, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles