Judge Lee S. Arian, Case Number: 21STCV36314, Date: 2024-01-23 Tentative Ruling

This is an action arising from Plaintiff Alejandro Gaston Torres (“Plaintiff”) falling off or through a carport roof located at 15517 Sandel Ave., Gardena, CA 90248 (the “Property”), which occurred on October 22, 2019. Plaintiff contends that he was attempting to repair or replace the roof of the carport at the request of Defendant Jontai Joshua Jeter (“Defendant”).

On October 1, 2021, Plaintiff filed a complaint against Defendant and Does 1 to 10, alleging a single cause of action for premises liability.

On June 14, 2022, after hearing oral argument, the Court sustained Defendant’s demurrer to the complaint with 30 days leave to amend.

On July 8, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendant and Does 1 to 10, alleging a sole cause of action for premises liability.

On April 24, 2023, Plaintiff filed the instant motion to compel further response at deposition of Defendant, motion for a protective order barring Defendant and Defendant’s attorneys from engaging in harassing conduct at deposition, and a request for monetary sanctions against Defendant and his attorneys in the amount of $2,260.00.

On August 7, 2023, Defendant filed an IDC Form which indicates that the issues set forth in the motion were resolved and that Defendant agreed to pay for the Court reporter and that Defendant would be present for a second deposition. Such form also indicates that Defendant agreed to answer all questions and reasonable follow-up questions related to the questions raised in the motion. In summary, the IDC form indicates that the issues raised in the motion were resolved.

On August 14, 2023, an Informal Discovery Conference (“IDC”) was held, and the Court ordered Plaintiff’s counsel to prepare and submit a Notice of Outcome within five court days. (08/14/23 Minute Order.) The Court noted that “[t]he issues have not been resolved.” (08/14/23 Minute Order.)

On August 21, 2023, Plaintiff filed and served a Notice of Outcome. The Notice of Outcome states that “[a]lthough it appeared at the IDC that the discovery dispute was fully settled . .. there is no full resolution.” (See Notice of Outcome, 2:8-10.) Plaintiff indicated that “Defendant’s counsel will not instruct Defendant to refrain from making comments about the questions at the second deposition; and Defendant will not answer all the questions in dispute, including regarding the paternity of the children of Defendant’s live-in girlfriend at the accident scene.” (Notice of Outcome, 2:11-14.)

According to the separate statement in support of the motion, Plaintiff seeks an order that Defendant produce scene photos at deposition, unredacted declaration of coverages, answer questions about Defendant’s resident girlfriend and reasonable follow-up questions thereto, and answer questions about whether he cares that someone fell on his premises and reasonable follow-up questions thereto.

On October 30, 2023, Plaintiff filed and served a supplementary motion indicating that “[a]lthough this discovery dispute appeared to settle a the IDC (Defendant’s attorney appearing to agree to answer all the questions in dispute including the identity of Defendant’s live-in girlfriend who witnessed some of the construction that is the subject of the suit, produce scene photos, instruct Defendant to not make his own objections, and to pay the entire cost of deposition), Plaintiff filed a notice of outcome indicating otherwise due to Plaintiff later learning that Defendant was refusing to pay for the entire cost of the deposition . . . and . . . Defendant’s attorney refusing to agree to instruct Defendant not to make comments amounting to making his own objections.” (Supp. Motion, 2:10-18.)

Plaintiff further argues in the supplementary motion that “[t]he Court . . . ruled at the IDC that if the outcome was positive the deposition would occur by Sept 20 but if it was negative then Plaintiff could hold off on the deposition and instead file a supplementary motion by October 30, 2023.” (Supp. Motion, 2:18-20.) Defendant’s attorney ultimately agreed to pay for the entire cost of the deposition but did not agree to instruct Defendant to refrain from making comments. (Supp. Motion, 2: 22-25.) Plaintiff argues that Defendant failed to produce unredacted declarations of coverages. (Supp. Motion, 3:5-11.) Plaintiff asserts that Defendant failed to provide full contact information in written special interrogatory number 24 that his attorney promised he would provide at the IDC. (Supp. Motion, 3:1-2.) As to the supplementary motion, counsel declares Plaintiff is seeking an additional $825.00 in sanctions. (Feldman Supp. Motion Decl., ¶ 11.)

In opposition to the motion, Defendant contends that at the IDC, Defendant’s counsel reiterated that the IDC statement contained the agreement reached amongst counsel and that Defendant would stand by it. (Opp., 3:26-27.) Defendant asserts that he already produced all unredacted copies of his insurance policy. (Opp., 3:22-25.) Moreover, Defendant asserts that Plaintiff’s counsel has been advised that he “would be produced for deposition, that counsel would do their best to have [Defendant] respond appropriately, that [Defendant] would answer all questions agreed to at the IDC and all other reasonable questions as well.” (Opp., 3:28-4:2.) Defendant states that all the issues raised in the motion have been resolved but for the demand of Plaintiff’s counsel that Defendant not be instructed to make any comments at deposition. (Opp., 4:17-18; see also Damon Decl., ¶¶ 7-10.) Defendant asserts that the motion is frivolous, and sanctions should be imposed on Plaintiff.

On reply, Plaintiff argues that Defendant should be ordered to provide contact information for his live-in girlfriend as it was not provided in response to Plaintiff’s form interrogatories. Such discovery, however, is not within the scope of this motion as it is not identified in the separate statement. (Cal. Rules of Court, Rule 3.1345, subd. (c).) If Plaintiff wishes to compel a response to form interrogatories then Plaintiff may file and serve a noticed motion. For purposes of the instant motion, the Court finds such request not relevant. As such, the Court DENIES that request.

Plaintiff requests that Defendant be ordered to answer questions about who the father of each child is living in the residence at the time of the subject incident; however, such questioning was not identified in the separate statement or moving papers. (See Cal. Rules of Court, Rule 3.1345.) The Court thus DENIES this request.

Thus, the Court’s analysis will only address the issues raised in the motion and supplemental motion, as well as the separate statement. The Court will neither compel further responses to deposition questions that were never asked nor will the Court resolve other discovery matters that are not before the Court via a noticed motion. There are inconsistencies between the parties as to what issues have been resolved, thus, with the exception of the above-identified issues not set forth in the separate statement, the Court will assess the motion in its entirety. [1]

Under Code Civ. Proc. § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Code Civ. Proc., § 2017.010.)

“If, after service, of a deposition notice, a party to the action . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . or tangible thing described in the deposition notice, the party giving notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).) To justify the production of documents at deposition, a party must “set forth specific facts showing good cause.” (Code Civ. Proc., § 2025.450, subd. (b).)

“If a deponent fails to answer any question or to produce any document . . . 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., § 2025.480, subd. (a).) A motion brought pursuant to Code Civ. Proc. § 2025.480 “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., § 2025.480, subd. (b).)

Initially, the Court notes that Defendant’s opposition does not dispute the relevancy or appropriateness of the documents requested to be produced or questions to be answered at a further deposition. Due to the lack of legal authority presented in the opposition as to the relevance or right to privacy, the Court finds that Defendant has conceded to disclosure of such information under Moulton, supra, 111 Cal.App.4th 1210, 1215. Also, according to the opposition, Defendant has agreed to produce all documents and answer the questions at issue in the motion.

The Court also finds that the meet and confer requirement has been met and the motion is timely under Code Civ. Proc., § 2025.480. (See Feldman Decl., ¶¶ 10-12; Exhibit E.)

Plaintiff’s counsel declares that on February 6, 2023, he attempted to take the deposition of Defendant. (Feldman Decl., ¶ 6; Exhibit A.) Counsel describes Defendant’s conduct at the deposition of making personal objections and the conduct of Defendant’s counsel in cutting Defendant off from answering questions as to the schedule of Defendant’s girlfriend and whether Defendant employed Plaintiff. (Feldman Decl., ¶ 6; Exhibit D.) Counsel attests to explaining to Defendant’s counsel of the need to answer various questions and follow-up questions. (Feldman Decl., ¶¶ 7-8; Exhibit D.) The Notice of Deposition of Defendant is attached as Exhibit A to counsel’s declaration. (Feldman Decl., Exhibit A.) Defendant’s Response and Objection to Plaintiff’s Notice of Deposition and Request for Production of Documents is attached as Exhibit B to counsel’s declaration. (Feldman Decl., Exhibit B.)

In Plaintiff’s separate statement in support of the motion, Plaintiff indicates that the photos sought to be produced at deposition are subject accident scene photos and Plaintiff requests “all [photographs] in your possession depicting or otherwise representing the scene of this [incident].” (Separate Statement, 2:11-12.) Defendant objected to such request but stated he would produce all photographs, to the extent any exist, in his possession, custody, and control. (Separate Statement, 2:17-20.)

The Court finds such information is relevant as the scene photographs go to the condition of the Property when Plaintiff allegedly fell and may lead to other admissible evidence.

As to unredacted declarations of coverages that were sought in the Notice of Deposition and Request for Production of Documents, the Court finds that such documents may contain information as to the condition of the carport or whether another party may be partially liable for Plaintiff’s alleged damages. Plaintiff seeks “any and all declaration [documents] relating to [Defendant’s] insurance policy that was in effect at the time of [the] [incident].” (Separate Statement, 3:11-13.) Such information is relevant to the claims in this action.

The Court therefore ORDERS Plaintiff to produce incident scene photos and unredacted declarations of coverages at deposition.

At deposition, Defendant refused to answer questions about his girlfriend’s name, age, and employment. (Separate Statement, 4:1-10.) Defendant also refused to answer questions about what vehicle was parked under the carport. (Id.) Defendant, however, admitted that his girlfriend lived at the Property and was living at the Property during the time of the carport remodel. (Separate Statement, 4:12-15.)

The Court finds that such information is relevant because Defendant’s girlfriend may be a percipient witness and may have information that can lead to the discovery of admissible evidence. Whether a vehicle was parked under the carport may go toward damages or whom was present at the Property when the incident occurred.

The Court therefore ORDERS Defendant to provide further responses to such questioning.

Questioning About Whether Defendant Caring About Whether Someone Fell at the Premises

Plaintiff seeks to compel Defendant to respond to the question of does Defendant “care whether someone fell on your premises?” (Separate Statement, 5:10-12.) Plaintiff argues that such questioning is relevant to ascertain whether Defendant may be liable for punitive damages and whether Defendant is hiding information about the subject accident.

While a seeming stretch, the Court finds that such questioning may be relevant to Defendant’s state of mind during the alleged incident and can go toward whether Defendant could be subject to punitive damages.

Thus, the Court ORDERS Defendant to provide further responses to such questioning at deposition.

A protective order shall issue upon a showing of good cause. (Code Civ. Proc., § 2025.420, subd. (a).) A protective order protects “any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expenses.” (Code Civ. Proc., § 2025.420, subd. (b).) Code Civ. Proc., § 2025.420 sets forth a non-exhaustive list of directions that can be part of a protective order. (Code Civ. Proc., § 2025.420, subd. (b)(1)-(16).) A party seeking a protective order has the burden of showing good cause for the order sought. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

Plaintiff seeks a protective order barring Defendant and Defendant’s attorneys from engaging in annoying conduct. That request is a bit ambiguous. The Court understands the request to be primarily seeking an order that Defendant’s counsel instruct Defendant not to make his own objections or other inflammatory comments. Plaintiff’s counsel sets forth instances of Defendant making his own objections. (Feldman Decl., ¶ 5.) To the extent that Plaintiff wishes to prohibit opposing counsel from objecting to questions at deposition, the Court finds such request improper. At this time, the Court declines to make any protective order, but hereby strongly recommends that Defendant’s counsel ensure that his client not engage in any annoying conduct and, in particular, strongly encourages Defendant’s counsel to advise his client that he is not to make his own objections during deposition.

Misuse of the discovery process includes “[m]aking, without a substantial justification, an unmeritorious objection to discovery.” (Code Civ. Proc., § 2023.010, subd. (h).) “The Court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.480, subd. (j).)

A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.)

Although there is a dispute about whether Defendant produced the documents at issue and agreed to answer questions at deposition after Plaintiff’s motion was filed, it is undisputed that Defendant’s actions and that of Defendant’s counsel necessitated the instant motion.

Counsel declares that his hourly rate is $275.00 per hour and that he will incur a $60 filing fee for the motion which equals $2,260.00. (Feldman Decl., ¶ 13.) In the supplementary motion, counsel declares that he spent an additional 3 hours as to the supplementary motion and requests an additional $825.00 in sanctions against Defendant, his attorney Jennifer Damon, and her new firm Colman Perkins Law Group.

The Court will not impose sanctions against Colman Perkins Law Group as they had no affiliation with this matter when Plaintiff’s motion was filed. Exercising its discretion, the Court GRANTS IN PART Plaintiff’s request for monetary sanctions in the reasonable amount of $610.00, which represents 2 hours of work on the motion plus the $60.00 filing fee. The Court reduces the amount of monetary sanctions given the straightforward nature of the motion and the fact that there is a dispute as to whether the issues raised in the motion were actually resolved.

Monetary sanctions in the amount of $610.00 are to be paid to Plaintiff by Defendant and Defendant’s counsel, Jennifer Damon, jointly and severally, within 30 days of the date of notice of this order.

The Court GRANTS Plaintiff’s motion to compel further responses at the deposition of Defendant concerning answers to questions and the production of documents.

The Court GRANTS IN PART Plaintiff’s request for monetary sanctions. Monetary sanctions in the amount of $610.00 are to be paid to Plaintiff by Defendant and Defendant’s counsel, Jennifer Damon, jointly and severally, within 30 days of the date of notice of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court

[1] Initially, the Court notes that Plaintiff’s motion is brought pursuant to Code Civ. Proc. § 2025.450, which concerns the failure to appear for deposition. Here, Defendant appeared for deposition but refused to answer questions and produce documents. Defendant does not raise this issue in opposition to the motion. The Court therefore will assess the merits of the motion as the Court finds that Defendant has waived such argument. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)