Judge Jill Feeney, Case 18STCV08467 2022-09-13 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at sscdept30@lacourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

On December 14, 2018, plaintiff Martin Langarica Alvarez (“Plaintiff”) filed this action against defendants Nicolo Olino (“Defendant) and Geronimo Olino, arising from a motor vehicle accident that occurred on February 11, 2018. The Complaint alleges that the defendants so negligently, owned, operated, entrusted and/or drove their vehicle so as to cause injuries to Plaintiff.

On October 6, 2021, the Court heard Plaintiff’s Ex Parte Application to Shorten Time to Hear Plaintiff’s Motion to Compel Defendant’s Deposition and Continue Trial. (Minute Order, filed October 6, 2021, p. 1.) Pursuant to the parties’ stipulation, the Court ruled that the motion was moot and ordered Defendant to present himself for his deposition on October 14, 2021, at 1:30 p.m. Defendant attended the deposition pursuant to the parties’ stipulation entered at the hearing on October 6, 2021.

On March 18, 2022, the Court granted Plaintiff’s request for sanctions. Defendant failed to attend a properly noticed deposition and failed to produce the requested documents on August 11, 2021.

Plaintiff argues that Defendant should be compelled to attend his deposition and produce requested documents because Defendant refused to answer questions at deposition under his counsel’s direction. Additionally, Defendant did not provide complete responses to Plaintiff’s requests for document production. Additionally, Plaintiff requests sanctions against Defendant’s counsel for making unmeritorious and baseless objections, preventing Plaintiff from proceeding with Defendant’s deposition. Plaintiff also states that Defendant unilaterally terminated the deposition. Plaintiff also seeks sanctions against Defendant.

In opposition, Defendant argues that Plaintiff’s motion should be denied because Plaintiff exceeded the scope of questioning permitted by the March 18, 2022 order. Additionally, Defendant argues he did provide responses to Plaintiff’s document requests and that Plaintiff’s request for production did not include actual text messages. Defendant also argues that Plaintiff improperly refers to Defendant as Allstate, which is inaccurate because Allstate is not a party to this action. Defendant also states Plaintiff’s counsel used abusive tactics during the deposition, including team questioning. Defendant also claims it was Plaintiff, not Defendant, who unilaterally terminated the deposition. Lastly, Defendant claims Plaintiff’s request for sanctions is inappropriate.

In reply, Plaintiff argues his counsel’s questioning was within the scope of the March 18, 2022 order because the questions pertained to the contested car accident. Plaintiff contends that Defendant abusively prevented the deposition from going forward. Plaintiff also reiterates that it was Defendant who unilaterally terminated the deposition. Plaintiff again requests sanctions.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A party desiring to take an oral deposition shall give a notice in writing which states the specification of reasonably particularly of any materials to be produced by the deponent. (Code Civ. Proc., section 2025.220, subd. (a)(4).) A properly served deposition notice is effective to require a party to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., section 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., section 2025.410, subd. (a).)

Code of Civil Procedure section 2025.480, subdivision (a) states: “If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer .¿.¿.¿.”

“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given 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, subd. (i).)

A motion brought to compel a deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

“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.” (Code Civ. Proc. section 2017.010) Matters sought are properly discoverable if they will aid in a party's preparation for trial. (See Morris Stulsaft Foundation v. Superior Court (1966) 245 Cal.App.2d 409, 423.) The threshold for relevance is low, and doubts as to relevance “should generally be resolved in favor of permitting discovery.” Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173.

Sanctions may be imposed for misuse of discovery process. (Code Civ. Proc., section 2023.030, subd. (a). ) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) 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. (Code Civ. Proc., section 2025.480.)

The parties’ disputes mainly concern (1) whether the Plaintiff’s questions at deposition fell within the scope of the questioning allowed by the Court’s March 18, 2022 order, (2) whether the text messages and images Plaintiff requested were within the scope of Plaintiff’s request for production, and (3) sanctions. A copy of the deposition at issue was properly lodged with the Court.

Plaintiff filed this motion after being unable to work through their discovery disputes at deposition. Having met and conferred during the deposition, Plaintiff satisfied the meet and confer requirements.

Plaintiff claims orders compelling Defendant’s further responses at deposition are appropriate because Defendant improperly refused to answer Plaintiff’s questions at deposition. In support of his motion, Plaintiff filed a separate statement of matters in dispute, but did not include the questions and answers at issue verbatim. Rather, Plaintiff appears to refer to the deposition as a whole by providing the deposition notice and noting Defendant’s response consisted of “Repeated asked and answered objections, beyond the scope objections, a ‘lack of foundation’ objection, and unilateral termination of the deposition.” (Separate Statement, p. 16.)

In opposition, Defendant claims that his counsel made reasonable objections to limit the scope of the deposition to remain compliant with the March 18, 2022 order. (Opp., p. 4.) Defendant claims Plaintiff’s counsel asked questions that had already been previously asked in a fishing expedition. (Id.)

According to the lodged deposition transcript, Defendant’s counsel first began objecting after Defendant’s counsel asked questions about Defendant’s vehicle. (Olino Depo., 10:22-11:3.) Defendant’s counsel continued making objections until Defendant’s counsel stopped Defendant from answering a question about whether he texts pictures from his cell phone while driving:

The Court’s March 18, 2022 order specified that the subject of the deposition was Document Requests 33, 37, and 42-45 and questions arising from those documents. The document requests include:

Produce any and all DOCUMENT(S) in YOUR possession, custody or control, and that relate to, refer to, or make mention of any and all motor vehicles that YOU have used for purposes of YOUR employment during the last two years.

Produce any and all DOCUMENT(S) in YOUR possession, custody or control, and that relate to, refer to, or make mention of any and all traffic collisions that YOU have been involved in during the last 7 years.

Produce any and all DOCUMENT(S) in YOUR possession, custody or control, and that relate to, refer to, constitute, or make mention of YOUR cellular phone records for the date of the IMPACT.

Produce a copy of the itemized portions of the cellular telephone bill(s) for any mobile phones used by YOU on the date of the IMPACT, and showing any and all telephone calls sent or received on the date of the IMPACT.

Produce a copy of the itemized portions of the cellular telephone bill(s) for any mobile phones used by YOU on the date of the IMPACT, and showing any and all text messages sent or received on the date of the IMPACT.

Produce a copy of the itemized portions of the cellular telephone bill(s) for any mobile phones used by YOU on the date of the IMPACT and showing any and all data usage on the date of the IMPACT.

From an examination of the deposition transcript, it appears that Plaintiff’s counsel asked Defendant questions about the vehicle he was driving during the impact that is the subject of litigation, whether his vehicle had electronic data recording, the sequence of events that led to the impact, whether Defendant was on his phone at the time of the accident, and whether Defendant still had access to the picture his phone allegedly received around the time of the impact. These questions are relevant to the collisions Defendant has been involved in, including the impact that is the subject of litigation and his cell phone records from the date of the impact. The questions are thus related to the documents requested in Document Requests 33, 37, 42-44.

Plaintiff’s counsel asked questions that were within the scope of the subject matter allowed by the Court’s March 18, 2022 order. Defendant’s counsel’s objections were without merit and improperly instructed Defendant not to answer.

Plaintiff’s counsel also contends that Defendant failed to produce the text messages and images from the date of the impact. In opposition and during deposition, Defendant’s counsel consistently states that the actual text messages and images are not within the scope of the requests:

“So your request, specifically request 44, asked for cell phone bills showing text messages sent and received on the day. It doesn’t ask for the actual text message. So if you would like to propound additional discovery according to the Discovery Act, I will allow that, but that’s not what the request 44 is specifically asking. So it’s outside of the scope of what this deposition is allowed to be addressing.”

Demand No. 44 reads “Produce a copy of the itemized portions of the cellular telephone bill(s) for any mobile phones used by YOU on the date of the IMPACT, and showing any and all text messages sent or received on the date of the IMPACT.” As Defendant’s counsel stated, the demand requests the itemized cellular telephone bill, not the texts and images themselves. The texts and images themselves are beyond the scope of Plaintiff’s production demands. Thus, Defendant did submit complete responses to Plaintiff’s production demands at deposition.

Although Plaintiff’s motion is granted in part, the parties’ counsel must conform with the State Bar of California Attorney Guidelines of Civility and Professionalism during the next deposition. At the last deposition, both parties engaged in behavior that would be inappropriate in the presence of a judicial officer. Defendant’s counsel made inappropriate speaking objections during deposition and directed Defendant to refuse to answer a question. Plaintiff’s counsel also engaged in inappropriate behavior that lacked civility by repeatedly interrupting Defendant’s counsel, asking her to stop speaking, and consistently making rude remarks. Additionally, Plaintiff repeatedly referred to Defendant as Allstate. Allstate is not a party to this action. Plaintiff must refrain from misrepresenting the parties in this action in the future.

Both parties state the other unilaterally terminated deposition proceedings. Although Plaintiff’s counsel ultimately terminated deposition proceedings, Defendant’s counsel made the first attempt to end proceedings. Both parties are at fault for prematurely terminating deposition proceedings. Additionally, both parties spoke over each other and consistently failed to maintain the civility required of attorneys by the State Bar of California.

Defendant also argues Plaintiff employed abusive tactics during deposition by engaging in team questioning. However, it is not abusive per se to have two attorneys, rather than one, questioning a deponent. Rockwell Int'l, Inc. v. Pos-A-Traction Indus., Inc. (9th Cir. 1983) 712 F2d 1324, 1325. The Court finds that Plaintiff’s counsel questioned Defendant one at a time, covering a different subject matter in turn. This practice is not abusive.

Plaintiff seeks sanctions against Defendant for failing to comply with the Court’s March 18, 2022 order by preventing Defendant’s deposition from moving forward through unmeritorious objections. Defendant unsuccessfully opposed Plaintiff’s motion to compel Defendant’s deposition. However, Defendant was substantially justified in opposing the motion with respect to the production of documents. Under these circumstances, as well as the other circumstances set forth above, the Court declines to impose sanctions.