Judge: Jill Feeney, Case: 21STCV20874, Date: 2023-02-17 Tentative Ruling
Case Number: 21STCV20874 Hearing Date: February 17, 2023 Dept: 30
Department 30, Spring Street Courthouse
February 17, 2023
21STCV20874
Motion to Compel Second Deposition of Defendant’s Employee Oscar Contreras filed by Plaintiff Pouria Keyvani.
DECISION
The motion is granted with respect to Nos. 1, 3, 10, 11, 12, 13, 14, 15, 16, 17, 22, 25, and 26
The motion is denied with respect to Nos. 2, 4, 5, 6, 7, 8, 9, 18, 19, 20, 21, 23, and 24.
The Court declines to impose sanctions as the motion was granted in part and denied in part.
The issue here is the application of Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255. "[T]he problem with legal contention questions has nothing to do with discoverability of the information sought. The information is clearly discoverable when sought by written interrogatory." (Id. at 1261.) But responses to interrogatories asking for legal contentions are prepared with "the assistance of counsel in formulating a reply." (Id. 1262.)
Such assistance is allowed because "legal contention questions require the party interrogated to make a 'law-to-fact application that is beyond the competence of most lay persons.'" (Id., citing 1 Hogan, Modern California Discovery (4th ed. 1988) p. 252.) For this reason, "their basic vice when used at a deposition is that they are unfair. They call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot." (Rifkind, 22 Cal. App. 4th at 1262.) "If the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory." (Id)
The Court has sorted the questions at issue on this basis. The questions where the motion is denied essentially ask the deponent to opine about the ultimate question as to whether the defendant was negligent based on certain facts.
JS attempts to argue this motion is moot by filing an amended deposition record. However, the answers to the questions at issue all state “I don’t know.” (Morrow Decl., Exh. A.). However, Plaintiff is entitled to cross-examine the deponent.
JS also requests that the deposition be conducted as a written deposition under Code Civ. Proc., section 2028.010. Section 2028.010 merely permits written deposition. Plaintiff has not moved for or consented to a written deposition. Plaintiff is entitled to complete his questioning at oral deposition.
JS also argues that Contreras’s deposition lasted more than 7 hours in violation of Code Civ. Proc., section 2025.290. However, the Court may allow additional time if needed to fairly examine the deponent. (Code Civ. Proc., section 2025.290, subd. (a).) Here, more time is necessary for Plaintiff to fairly depose Contreras because there were a significant number of questions which JS’s counsel improperly instructed Contreras not to answer.
