Judge: Jill Feeney, Case: 22STCV15958, Date: 2024-02-08 Tentative Ruling

Case Number: 22STCV15958    Hearing Date: April 2, 2024    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendants’ motion to strike Plaintiff’s deposition corrections is DENIED.

Moving party to give notice.

FACTUAL BACKGROUND

This is an action for breach of contract, breach of the covenant of good faith and fair dealing, wrongful termination, violations of the FEHA, violations of the Labor Code, fraudulent inducement, intentional infliction of emotional distress, violation of Business and Professions Code, section 17200, and violation of the CLRA. Plaintiff alleges that while she was Defendants’ employee, Defendants forced her to transfer, harassed her, and refused to accommodate her disabilities on account of her status as a mother and her gender, appearance, and weight.

PROCEDURAL HISTORY

On May 13, 2022, Plaintiff Adriana Renovato filed her Complaint against Defendants Carters, Inc., Carters Retail, Inc., and Lisa Quibilan.

On December 1, 2023, Defendants filed their motion for summary judgment.

On February 21, 2024, Defendants filed their motion to strike deposition testimony.

On March 19, 2024, Plaintiff filed an opposition.

On March 25, 2024, Defendants filed a reply.

DISCUSSION

Defendants move to strike Plaintiff’s proposed corrections to the deposition transcript of Plaintiff’s deposition taken on November 7, 2023.

Code of Civil Procedure section 2025.520 provides, in relevant part, 

(a) If the deposition testimony is stenographically recorded, the deposition officer shall send written notice to the deponent and to all parties attending the deposition when the original transcript of the testimony for each session of the deposition is available for reading, correcting, and signing, unless the deponent and the attending parties agree on the record that the reading, correcting, and signing of the transcript of the testimony will be waived or that the reading, correcting, and signing of a transcript of the testimony will take place after the entire deposition has been concluded or at some other specific time. 

(b) For 30 days following each notice under subdivision (a), unless the attending parties and the deponent agree on the record or otherwise in writing to a longer or shorter time period, the deponent may change the form or the substance of the answer to a question, and may either approve the transcript of the deposition by signing it, or refuse to approve the transcript by not signing it. 

…

(f) If the deponent fails or refuses to approve the transcript within the allotted period, the deposition shall be given the same effect as though it had been approved, subject to any changes timely made by the deponent.

(g) Notwithstanding subdivision (f), on a seasonable motion to suppress the deposition, accompanied by a meet and confer declaration under Section 2016.040, the court may determine that the reasons given for the failure or refusal to approve the transcript require rejection of the deposition in whole or in part.

(Code Civ. Proc., § 2025.520, subd. (a)-(g).) 

Here, Defendants took Plaintiff’s deposition on November 7, 2023. (Vongcanglor Decl., ¶3.) On November 8, 2023, the reporter provided the parties with a copy of Plaintiff’s deposition transcript. (Id., ¶8.) On December 1, 2023, Defendants filed their motion for summary judgment. (Id., ¶9.) On December 8, 2023, within 30 days after the deposition transcript became available, Plaintiff sent a correction certificate to the court reporter and Defendants’ counsel containing 78 corrections changing the substance of Plaintiff’s deposition testimony. (Id., ¶¶10-11.)

Defendants move to strike Plaintiff’s deposition testimony changes because they are contradictory. First, although Defendants cite Code Civ. Proc., section 2025.520, this section does not allow the Court to strike proposed corrections to a deposition transcript. Rather, Code Civ. Proc., section 2025.520(g) provides that a court may suppress a deposition by determining whether the reasons given for a failure or refusal to approve a deposition transcript would require rejection of the deposition in whole or in part. In other words, the Court is only empowered to suppress a deposition if a deponent fails or refuses to approve the transcript. Here, Plaintiff is not refusing to approve the transcript, but is proposing to make changes to the transcript. Defendants cite no authority stating the Court may strike changes to the form and substance of answers to deposition questions which are permitted under Code Civ. Proc., section 2025.520(b).

Defendants argue that the corrections are contradictory and may be stricken under the sham declaration doctrine. Defendants allege that Plaintiff made the changes to avoid the consequences of her prior admissions at deposition. Defendants rely on cases where deponents filed affidavits contrary to prior deposition testimony or changed their deposition testimony after the deposing party had already filed a motion for summary judgment.

For example, in D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22 (D’Amico), the California Supreme Court ruled that a party may not oppose summary judgment by filing a declaration which would impeach his or her own prior sworn testimony. Defendant cites Tiffany Builders, LLC v. Delrahim (2023) 97 Cal.App.5th 536, 547 (Tiffany) and Vulk v. State Farm Gen. Ins. Co. (2021) 69 Cal.App.5th 243, 258 (Vulk), both of which support the same rule as D’Amico.

In Gray v. Reeves (1977) 76 Cal.App.3d 567, 574, a deponent did not sign a deposition transcript, the deposing party filed a motion for summary judgment nearly two years after the deposition, and the deponent then made changes to his deposition testimony. The court there ruled that a deponent may not counter an admission by changing the content of his answer at deposition when there is no assertion that the original answer was incorrectly transcribed, or the question was misleading or ambiguous.

D’Amico, Tiffany, and Vulk do not concern whether a deponent may make substantive changes to deposition testimony within the statutory period. Rather, they concern whether a deponent may create a triable issue of material fact in opposition to summary judgment by making an affidavit which would impeach the deponent’s earlier testimony. The sham declaration doctrine is not applicable here because Plaintiff is not making a declaration contrary to her deposition testimony in opposition to a motion for summary judgment but exercising her right to make changes to her deposition answers within the statutory period.

Gray likewise does not stand to bar deponents from making substantive changes to deposition transcripts. The deponent in Gray made changes to the deposition transcript 19 months after the deposition took place and made no assertion that the testimony changed was incorrect or made due to a misleading question. Here, Plaintiff is making substantive changes as permitted under Code Civ. Proc., section 2025.250(b) within the statutory period.

Because Plaintiff is permitted to make changes to the form and substance of her deposition answers within 30 days of the availability of the original transcript, Defendants motion to strike Plaintiff’s deposition corrections is denied.

DATED:  April 3, 2024

______________________

Hon. Jill Feeney 

Judge of the Superior Court