Department 30, Spring Street Courthouse

December 8, 2022

20STCV40992

Motion to Compel Defendant’s Employee Michael Douglas Clayton to Answer Questions at his Deposition filed by Plaintiffs Vivian and Chris Powers

The motion is granted.  The witness must be produced for a continued deposition within 30 days after the date of this order.  

Sanctions against Defendant and Defendant’s Attorney of Record are imposed in jointly and severally in the amount t of $960. The sanctions are due within 30 days after the date of this order. 

Defendant must also pay the costs for the court reporter and videographer.

Moving party to provide notice. 

 

 

This is an action for negligence, premises liability, and loss of consortium arising from a trip and fall incident which took place in October 2018. Plaintiffs Vivian and Chris Powers filed their Complaint against Marriot International, The Ritz-Carlton Management Company, LLC., The Ritz-Carlton Hotel Company of California, The Ritz-Carlton Development Company, Inc., and the Ritz-Carlton Title Company, Inc. on October 26, 2020. 

 

On November 14, 2022, Plaintiffs filed the instant motion to compel Michael Douglas Clayton to provide further responses at deposition. 

 

 

Moving Arguments 

 

Plaintiffs seek to compel Michael Douglas Clayton to answer certain deposition questions on the grounds that the questions asked do not fall under any privilege and must be answered. Plaintiffs also seek sanctions.

Opposition Arguments

Defendant Ritz-Carlton Hotel Company, LLC (“Hotel”) argues in opposition that the questions asked call for legal conclusions from a lay witness. Additionally, Hotel argues that Clayton did respond to the questions asked.

Reply Arguments

Plaintiffs argue on reply that the questions asked related to factual information, not legal conclusions. Plaintiffs also argue that Hotel’s counsel’s instructions not to answer were improper.

 

“If a deponent fails to answer any question or to produce any document, electronically stored information,¿or tangible thing under the deponent's control 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., section 2025.480(a); see Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015 n. 3 [the only proper basis to instruct a deponent to not answer a question is an objection based upon a privilege or manifestly irrelevant questions or questions designed only to harass.]) “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.” (Code Civ. Proc., section 2025.480(i).)¿Failure to obey an order may be considered contempt of court and could subject a party to the action to issue, evidentiary, or terminating sanctions as well as monetary sanctions. (Code Civ. Proc., section 2025.480(k).) “This 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.”¿(Code Civ. Proc., section 2025.480(b).) 

Notice of motions to compel answers must be personally served on nonparty deponents unless the nonparty deponent agrees to accept service by mail or electronic notice. (Cal. Rules of Court, rule 3.1346.) A certified copy of the deposition transcript must be lodged with the Court at least 5 days before the hearing on the motion. (Code Civ. Proc., section 2025.480, subd. (h). The motion must be supported by a separate statement and a declaration. (Cal. Rules of Court, rule 3.1345, subd. (a) and (c).)

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.) A party’s contention may be the subject of discovery, but not the legal reasoning or theory behind the contention. (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 2.) Although the opinion and conclusion of a witness or party may serve no useful purpose and may be inadmissible, in the absence of other factors, it would be improper to deny the right to disclosure. (Greyhound Corp. v. Superior Court In and For Merced County (1961) 56 Cal.2d 355, 393.)

The Court shall impose sanctions on the party that unsuccessfully makes or opposes the motion unless it finds that the losing party acted with substantial justification or other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., section 2025.450, subd. (g)(1), 2025.480, subd. (j).)

Plaintiffs move for an order compelling further answers from Michael Douglas Clayton, Hotel’s employee. Hotel’s objections largely state that Plaintiffs’ questions were legal opinion questions requiring the witness to provide a legal opinion.

At deposition, Hotel’s counsel instructed Clayton not to answer 15 questions pertaining to whether Hotel was obligated to fix its driveway, the likelihood someone falling in the hotel’s driveway, whether loose stones in the hotel driveway were a dangerous condition, whether the hotel should have fixed the driveway sooner, and whether the hotel’s employees were obligated to report the driveway. 

Hotel relies on Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1256 to justify the refusal to answer. However, Rifkind pertains to “legal contention” questions, which the Rifkind court defined as questions calling upon him to state all facts, list all witnesses, and identify all documents that support the affirmative defenses he had asserted in his answer to the lawsuit. Here, although some of the questions posed may call for a legal conclusion, Plaintiffs’ questions do not call for Clayton to provide all facts, witnesses, and documents that support Hotel’s affirmative defenses. Thus, Rifkind does not apply to the situation at hand.

Plaintiff’s questions pertaining to whether Hotel’s driveway was in a dangerous condition, whether Hotel had an obligation to repair the driveway, and the likelihood of someone falling do call for a legal conclusion or Clayton’s opinions. However, an opinion or legal conclusion alone without other factors is not a justification for an instruction not to answer. It does not appear that Plaintiffs asked for Hotel’s own legal theories. Plaintiffs seek Clayton’s opinions on the Hotel’s obligations and the safety of the driveway. Even if this information may be inadmissible later, inadmissibility alone does not mean information is not discoverable and would not justify the denial of disclosure. Without an objection as to privilege or another valid objection, Hotel’s instruction not to answer was improper.

Additionally, Plaintiff’s questions pertaining to Hotel’s policies for fixing defects in its driveway and for employee reporting of defects do not appear to ask for a legal conclusion. Rather, they seek to reveal Hotel’s policies regarding reporting and repairs. This information is relevant to the dispute at hand and is therefore discoverable.

Hotel also argues that Clayton did respond to every question asked. However, an examination of the deposition transcript shows that Hotel’s counsel did instruct Clayton not to respond and Clayton thereafter did not respond to Plaintiffs’ questions. If Clayton does not know the answers to some of these questions as Defendant contends, he must so state.

Clayton must attend a second deposition and answer all questions referenced in Plaintiffs’ motion.

With respect to sanctions, sanctions are mandatory against any party who unsuccessfully makes or opposes the motion unless it finds that the losing party acted with substantial justification. (Code Civ. Proc., section 2025.450, subd. (g)(1).) Here, Hotel’s objections were not valid and did not justify Clayton’s failure to answer questions at deposition. The Court does not find that Hotel acted with substantial justification. Plaintiffs request $960 in sanctions for 6 hours of attorney time at a rate of $150 and filing fees. Plaintiffs also seek the costs of the reporter and videographer for Clayton’s second deposition. Plaintiffs’ requests for sanctions are granted.

Plaintiffs’ motions to compel answers to deposition questions is GRANTED.