Judge: Laura A. Seigle, Case: 23STCV10373, Date: 2024-03-22 Tentative Ruling

Case Number: 23STCV10373    Hearing Date: March 22, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTION TO COMPEL FURTHER DEPOSITION QUESTIONS

            Defendant Kaiser Gypsum Company filed a motion to compel further responses to deposition questions from Plaintiff Roberto Sotomayor.  The court rules as follows:

            A.        Criminal History and Restraining Orders

            Defendant seeks to ask questions about petitions for a restraining order filed 25 years and 19 years ago by an ex-wife, whether Plaintiff was ever arrested, and whether Plaintiff was ever charged with a crime.  Defendant argues that even if Plaintiff was never convicted of a crime, any “prior conduct involving moral turpitude” is discoverable because it may be relevant for impeachment.  (Motion at p. 10.) 

            Under Evidence Code section 787, “evidence of specific instances of [a witness’s] conduct relevant only as tending to prove a trait of his character is inadmissible to attach or support the credibility of a witness.”  That section is subject to section 788, which allows prior felony convictions to attack the credibility of a witness.  Defendant does not cite any cases holding that section 787 is inapplicable in civil cases or that evidence of prior conduct involving moral turpitude is admissible for impeachment.

            Instead, Defendant cites People v. Clark (2011) 52 Cal.4th 856, a criminal case.  That case explained that the passage of Proposition 8 in 1982 amended the California Constitution to state that “relevant evidence shall not be excluded in any criminal proceeding.”  (Id. at p. 931 n.20.)  After Proposition 8, in criminal cases a witness could “be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction,” subject to Evidence Code section 352.  (Id. at p. 931.)  Defendant also cites People v. Wheeler (1992) 4 Cal.4th 284, which held “that if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion.”  (Id. at p. 295.)  Neither case states that their holdings apply to character evidence in civil cases, and given that Proposition 8 did not affect civil cases, there is no reason for the Clark and Wheeler holdings to apply in civil cases.  Defendant does not cite any legal authority holding that Proposition 8 affected civil cases or that Clark and Wheeler apply in civil cases.  Defendant ignores the point that Proposition 8 applied only to criminal cases.

            In any event, a temporary restraining order issues on ex parte notice without a hearing and often without a response from the opposing party.  That a court issued a TRO 25 years ago based on an ex-wife’s request means very little.  Tellingly, the petitioner did not appear for the hearing on the permanent restraining order so the TRO was dissolved within 21 days and no permanent restraining order issued.  That the ex-wife filed two petitions that apparently did not result in permanent restraining order provides no admissible evidence that Plaintiff actually engaged in the conduct alleged in the petitions.  There is no evidence of moral turpitude, and inquiring about a marital dispute from 25 years ago invades private matters, is completely irrelevant to whether Defendant was exposed to asbestos, is not admissible as character evidence, and will consume an undue amount of time.

            The criminal cases against Sotomayor were all dismissed or subject to diversion.  (Park Decl., at pp. 3-4.)  Thus there was no misdemeanor conviction, let alone criminal conviction.  The fact that Sotomayor was arrested or charged in the late 1980s to the late 1999s is not evidence that he actually engaged in the alleged conduct.  The arrest and criminal records from 25 to 35 years ago are completely irrelevant to whether Defendant was exposed to asbestos, are not admissible as character evidence, are harassing, and are a waste of time.

            In sum, the motion is granted as to questions about whether Defendant was convicted of a felony, and is otherwise denied.

            B.        Genetic Testing

            Defendant seeks to ask whether Plaintiff has ever thought about getting genetic testing to find out whether his illness has a genetic component.  Plaintiffs’ counsel instructed the witness not to answer as the question was harassing and not relevant.

            Whether Plaintiff has thought about genetic testing is not harassing and may or may not be relevant.  It should take no more than two minutes to ask and answer the question.  The motion is granted as to that question. 

             C.       Earnings and Taxes

            Defendant wants to ask whether Plaintiff paid income and business taxes between 1969 and 1977.  Defendant argues the issue goes to Plaintiff’s credibility and the questions do not ask for the contents of the tax returns.  Plaintiff objects that the questions invade the taxpayer privilege.  

Whether Plaintiff paid taxes is irrelevant to any issues in this case.  Failure to pay taxes 50 to 55 years ago is not proper character evidence.  It is harassing and a waste of time.  The motion is denied.

D.        Retention of Counsel

Defendant wants to ask questions about how Plaintiff found his law firm to represent him.  Plaintiff objects that the question calls for attorney-client privileged information.  The question does not necessarily call for attorney-client privileged information.  For example, if a non-attorney recommended the firm, or if Plaintiff found the firm on the Internet or via an advertisement, he can answer.  The motion is granted.

E.        Additional Time

In its reply brief, Defendant says it needs an additional hour time at the deposition because Plaintiff’s counsel improperly instructed the witness not to answer questions.  However, most of the questions at issue were completely irrelevant, harassing, or otherwise not proper.  The two questions for which the motion is granted – “have you thought of genetic testing,” and “how did you find your attorney” – will take at most 5 minutes to ask and answer.  Therefore, no additional time is necessary.

            F.         Sanctions

            Defendant requests monetary sanctions.  The request is denied.  First, the notice of motion did not specify monetary sanctions.  Second, most of the motion was denied and Defendant did not show good cause for asking most of the questions that are the subject of the motion.

            The moving party is to give notice.