Judge Jill Feeney, Case 19STCV26067 2023-01-06 Tentative Ruling

Defendant Johnson is ordered to appear for an additional deposition to answer questions regarding: (1) any disability that he had as of the date of the accident and any possible impact of that disability on the accident; (2) the disability for which Defendant Johnson went on leave on or about December 2021 and any possible impact of that disability on the accident; (3) the creation of the accident report concerning the accident at issue here as well as any other questions relating to Defendant’s claim of privilege (assume privilege is claimed) with respect to the report (assuming Defendant claims that the report is not privileged, Defendant Johnson may be questioned about the report generally); (4) any additional questions regarding Limitless Express Transportation; and (5) any documents produced for the deposition.

At least ten days prior to the deposition, Defendant Johnson is ordered to produce all documents responsive to requests Nos. 1, 4, and 5. To the extent that a privilege of any kind is being claimed with respect to these requests, a privilege log must be produced (also at least ten days prior to the deposition). The privilege log must be code compliant and must contain all the information necessary for Plaintiff to challenge the claimed privilege.

This is an action for negligence arising from a bus collision which took place in January 2019. Plaintiff Cecil Bowens filed his Complaint against Defendants Jeffrey Johnson and the Los Angeles County Metropolitan Transportation Authority on July 25, 2019.

Plaintiff moves for issue sanctions against Defendant Johnson on the grounds that Johnson’s attorney improperly instructed him not to answer questions and Johnson failed to produce the documents requested at deposition. Plaintiff requests issue sanctions and a ruling that Johnson was the sole cause of the accident. Plaintiff alternatively requests orders stating Johnson’s disability and working hours were the major cause of the accident and that hidden documents establish that Johnson was the cause of the accident. As a final alternative, Plaintiff moves to compel Johnson to sit for a second deposition and to produce all documents previously requested.

When a party refuses to comply with an order compelling it to produce certain evidence, the judge may order that the facts must be taken as established in favor of the party that sought discovery of the evidence. (Code Civ. Proc., section 2023.030(b); Marriage of Chakko (2004) 115 CA4th 104, 109–110.)

“Discovery sanctions must be tailored in order to remedy the offending party's discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)¿ “Although the court has discretion in choosing a sanction, this discretion must be exercised in a manner consistent with the basic purposes of such sanctions, e.g., to compel disclosure of discoverable information.” (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193 (citation omitted).) “Furthermore, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” (Ibid. (citations omitted).)

A motion for issue or evidentiary sanctions must be accompanied by a separate statement. (Cal. Rules of Court, Rule 3.1345(a)(7).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.” (Cal. Rules of Court, Rule 3.1345(c).)¿

Code Civ. Pro. section 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, electronically stored information, or tangible thing under the deponent's control. The court shall order the production or answer be given if it determines that the matter sought is subject to discovery. (Code Civ. Proc., section 2025.480, subd. (i).) The moving party is required to lodge a certified copy of the deposition transcript portions relevant to the motion. (Code Civ. Proc., section 2025.480, subd. (h).) Monetary sanctions are mandatory against an unsuccessful moving or opposing party unless they acted with substantial justification or imposition of sanctions would be unjust. (Code Civ. Proc., section 2025.480, subd. (j).)

A motion made pursuant to Code Civ. Proc., section 2025.480 must be made no later than 60 days after the completion of the record of the deposition. (Code Civ. Proc., section 2025.480, subd. (b).) “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. section 2025.480, subd. (i).)

Counsel should not instruct clients not to answer the question unless the purpose is to protect privileged information. (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014.) Here, attorney for Defendant Johnson improperly instructed Defendant Johnson not to answer questions on numerous occasions. Nor did Defendant Johnson’s attorney stop the deposition and seek a protective order.

Any matter that is relevant to the subject matter and not privileged is discoverable if it is itself admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., section 2017.010.)

Plaintiff requests judicial notice of the fictitious business name of Limitless Express Transportation, which was registered with Los Angeles County in February 2019. The request is granted.

Plaintiff moves for issue sanctions on the grounds that Johnson failed to produce documents at his deposition and then improperly refused to answer deposition questions.

On June 24, 2022, the Court ordered Johnson’s deposition to go forward by July 2022. The Court continued the hearing to August 1, 2022 to decide on the issue of sanctions. On August 1, 2022, the Court granted Plaintiff’s motion to compel Johnson to appear at deposition and for production of documents but declined to award sanctions. The Court also noted that any further issues in connection to Johnson’s deposition must be addressed in a properly noticed motion to compel a second deposition.

Plaintiff’s counsel testifies that Johnson appeared for deposition on July 28, 2022 but did not produce a single document. (Silverstein decl., ¶4.) After the July 28, 2022 deposition, Plaintiff’s counsel met and conferred with Plaintiff’s counsel, who refused to produce the requested documents. (Id., ¶7.)

Because Johnson did appear for his deposition in compliance with the Court’s June 24, 2022 order, the Court finds that circumstances do not warrant issue sanctions against Johnson

Alternatively, Plaintiff requests that Johnson be compelled to sit for a second deposition and produce all documents requested. Plaintiff’s separate statement states the following disputes over requests for production:

Johnson objected that this request is improper because the information is protected by statutory, common law, or Constitutional rights of privacy. Johnson also argues that he does not have any responsive documents.

With respect to privacy, the Court always balances the right to privacy with other factors, such as the need for the information and its relevance to the litigation. Here, Defendant Johnson is a professional bus driver and as such has a lower expectation of privacy in these types of records. Moreover, such records are clearly relevant.

Plaintiff seeks an explanation to why the bus operated by Johnson sped up after Plaintiff changed into the same lane as the bus. Plaintiff seeks to determine whether Defendant was drowsy while driving because he worked more hours than is legally permitted or prudent. Although Johnson objected to the request, Johnson stated he would produce documents responsive to this request. Thus, Plaintiff’s motion is granted with respect to this request. Johnson must produce records pertaining to hours worked between January 1, 2019 and January 8, 2019.

Plaintiff seeks these documents again to show whether Johnson operated his vehicle safely and whether LAMTA was negligent in hiring and retaining Johnson. To the extent he has such documents, Johnson must produce these documents.

Plaintiff is entitled to probe at least somewhat into any disability that Defendant Johnson suffered from as of the date of the accident. Plaintiff is entitled to probe further Defendant Johnson’s assertion that his disability is unrelated to the accident. To protect Defendant Johnson’s right to privacy as much as possible while ensuring that Plaintiff receives necessary discovery, the parties may enter into a protective order regarding the use of this information.

Plaintiff is also entitled to probe into the operations of Johnson’s business as the business also involved driving and was operated at the time that Johnson was on disability leave from the MTA.

Finally, Plaintiff may inquire into the accident report as described above which is clearly relevant, but may be privileged and also may inquire about any documents and topics related to the documents produced in advance of the deposition.