Judge Lee S. Arian, Case Number: 22STCV04118, Date: 2024-01-25 Tentative Ruling

On February 2, 2022, Plaintiff Jose Cisneros brought this action against Defendants City of Industry, City of Los Angeles, Xebec Building Company, Inc., American Wrecking, Inc., and Does 1 to 50, for general negligence and premises liability. Plaintiff alleges that he has incurred injuries and damages arising from a trip and fall incident that occurred on a section of the Defendants’ sidewalk.

On November 21, 2022, Plaintiff filed the First Amended Complaint (“FAC”) which now serves as the operative pleading.

On November 29, 2023, Defendants City of Industry and L&M Construction, Inc. (collectively, the “moving Defendants”) filed the instant Motion to Compel Plaintiff’s Deposition, Motion for Order Appointing Discovery Referee, and Request for Monetary Sanction.

On January 8, 2024, Industry provided Plaintiff Notice of the February 8, 2024, hearing date for this instant motion. (Suppl. Cheng Dec. Ex. F.) Plaintiff also stipulated on the record at the Court hearing on January 25, 2024, to advance the hearing date for the instant motion to February 8, 2024, which the Court did in its January 25, 2024 Minute Order. (Suppl. Cheng Deel. Ex. J.) Plaintiffs opposition was due January 26, 2024. (Sec Code Civ. Proc.,§ 1005, subd. (b).)

On February 1, 2024, Plaintiff filed an untimely opposition to the Motions, which the Court, in its discretion, will consider. On the same day, moving Defendants replied.

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subdivision (a).)

“The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” (Code Civ. Pro., §2025.290, subd. (a).)

All parties present at the deposition are allowed to depose the witness. (See Code Civ. Proc., §§ 2025.330, subd. (d), 2025.610, subd. (a) & (b).)

The moving Defendants request that the Court issue an order: (1) compelling subsequent deposition of Plaintiff to take place within the next 60 days for an additional two days from 9:00 A.M. to 5 P.M., including reasonable breaks; (2) appointing a discovery referee to monitor Plaintiff’s continued deposition and ordering Plaintiff’s and his attorneys to pay the referee’s fees; (3) compelling Plaintiff’s deposition to proceed in person; (4) compelling the interpreter to provide interpretation of statement Plaintiff made on the record; and (5) compelling Plaintiff to answer a question he refused to answer on the grounds of privacy. (Mot. at 7.)

The moving Defendants argue that their right to depose Plaintiff was denied during Plaintiff’s initial deposition on September 13, 2023, primarily due to two reasons: (1) the abusive discovery misconduct by Plaintiff’s counsel delayed and prolonged the deposition process; and (2) Plaintiff’s counsel refused to allow the moving Defendants to question Plaintiff on the meritless ground that they had not issued any notice of deposition.

Generally, a deposition of an individual is limited to seven hours of testimony. (Code Civ. Proc., § 2025.290, subd. (a).) However, the court is required to “allow additional time . . . if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” (Ibid.) Additional factors that require additional time include: (1) “if the witness needs an interpreter, that may prolong the examination,” (2) “[i]f the examination reveals that documents have been requested but not produced, that may justify further examination once production has occurred,” and (3) “[i]n multiparty cases, the need for each party to examine the witness may warrant additional time.” (Federal Rules Advisory Committee Notes 2000 Amendment of Fed. Rules Civ. Proc., rule 30, 28 U.S.C.; see also Johnson v. Couturier (E.D. Cal. 2009) 261 F.R.D.188, 190 (Johnson).)

In his Opposition, Plaintiff argues that the moving Defendants lack the authority to bring the instant Motion because they are not the party that served notice for the initial deposition on September 13, 2023. (Opp’n., at 3.) However, the records indicate that the moving Defendants served Plaintiff with a Notice of Continued Deposition of Plaintiff on October 18, 2023. (Mot., at 7, 1/18/24 Cheng Supp. Decl., ¶ 5, Ex. “B.”) Despite this, Plaintiff failed to appear for the deposition. Accordingly, the Court finds that the moving Defendants have properly exercised authority under Code of Civil Procedure section 2025.450 subdivision (a) in bringing the instant Motion.

Next, Plaintiff contends that extending the deposition of Plaintiff beyond the required seven hours should not be allowed because the initial deposition was already conducted from 10:13 A.M. to 4:53 P.M. on September 13, 2023, and Plaintiff was deposed on all topics. (Opp’n., at 5, Zeesman Decl., ¶ 10.)

The Court notes that it heard and tentatively decided the moving Defendants’ separate Motion for Sanctions based on the same alleged facts of Plaintiff’s counsel’s discovery misconduct exhibited during the initial deposition on September 13, 2023. In the Court’s tentative ruling on the Motion for Sanctions, the Court found that Plaintiff’s counsel exhibited a pattern of making unmeritorious objections and improper coaching. (1/25/24 Minute Order). Additionally, the tentative ruling finds that Plaintiff’s counsel’s refusal to allow the moving Defendants to examine deponent Plaintiff constitutes obstructing the deposition process. (Ibid.) Therefore, Plaintiff’s mere assertion that the initial deposition lasted for about seven hours does not substantiate his argument against allowing the moving Defendants additional hours due to the abusive and obstructive discovery misconduct sanctioned by the Court. Plaintiff’s argument is not persuasive.

The Court finds that the factors for additional time under § 2025.290 warrant extending the time for deposing Plaintiff. First, it is undisputed that the deponent, Plaintiff, requires a Spanish interpreter. Second, at the initial deposition on September 13, 2023, Plaintiff did not produce all the records requested in the deposition notice until around 4:00 P.M. (Cheng Decl., ¶ 6, Ex. “A,” at 141:21-142:16.) Given that the initial deposition was concluded at 4:53 P.M. (Zeesman Decl., ¶ 10), it is reasonable to infer that Defendants were not given any meaningful time to review these records, supporting a finding that “further examination once production has occurred” is justified. Third, this is a multi-party case, and each party has an equal right to depose a witness. Consequently, an analysis of these factors leads to a conclusion that favors granting the moving Defendants’ request for continued deposition of Plaintiff. However, the moving Defendants’ request for an additional two days from 9:00 A.M. to 5:00 P.M., including reasonable breaks, appears excessive. Rather, given the factors noted above, and exercising its discretion, the Court concludes that granting an additional one day of deposition from 9:00 A.M. to 5:00 P.M., including reasonable breaks, is deemed reasonable and is therefore approved. Obviously, if Plaintiff engages in obstructive conduct during this timeframe, the Court will allow for additional time.

“When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640.” (Code Civ. Proc., § 639, subd. (a).)

“All appointments of referees pursuant to this section shall be by written order and shall include the following:

(6) A) Either a finding that no party has established an economic inability to pay a pro rata share of the referee’s fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee’s fees and that another party has agreed voluntarily to pay that additional share of the referee’s fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made.

(B) In determining whether a party has established an inability to pay the referee’s fees under subparagraph (A), the court shall consider only the ability of the party, not the party’s counsel, to pay these fees....”

Here, Plaintiff argues that appointing a referee would cause undue prejudice due to his economic inability to pay, highlighting a significant disparity in financial positions between the parties. (Opp’n., at 5.) Plaintiff, a self-employed electrician with modest means, has asserted an inability to pay for health insurance. (Opp’n., at 5-6.) The Court finds that these claims sufficiently demonstrate Plaintiff’s economic inability to pay a pro rata share of the referee’s fees. Given the absence of another party voluntarily agreeing to pay that additional share of the referee’s fee, the Court is constrained by Code of Civil Procedure section 639 subdivision (d) paragraph (6) subparagraph (A) from appointing a referee.

Request Plaintiff to be Deposed In-Person at Defendant City of Industry’s Counsel’s Office

“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense, including . . . [t]hat the deposition be taken only on certain specified terms and conditions.” (Code Civ. Proc., § 2025.420, subd. (b)(5).)

The moving Defendants contend that conducting an in-person deposition is most beneficial for Plaintiff. They argue that the proposed location is significantly closer to Plaintiff – only 3.6 miles away compared to the 50 miles he traveled for the initial remote deposition to his counsel’s office. (Mot., at 17.) The moving Defendants further contend that an in-person deposition would facilitate smoother interpretation and increase efficiency. (Ibid.) These arguments are not contested by Plaintiff in his Opposition.

Given these considerations and acknowledging the reduction of the proposed two-day continued deposition to a single day, the Court finds that there is good cause to warrant the request. An in-person setting is deemed to offer essential benefits for conducting a more efficient and effective session.

Therefore, the Court GRANTS the request for Plaintiff’s in-person participation in the continued deposition, recognizing the unopposed and reasoned arguments supporting this decision.

Request to Order the Interpreter to Provide Interpretations of Statements Made by Plaintiff on the Record

During the initial deposition on September 13, 2023, a moment arose where the Plaintiff began to respond to a question from Defendant before being interrupted by his counsel’s objection. (Cheng Decl., Ex. “A,” at 99:7-13; 101: 18-23, Opp’n., at 6.)

Under California Rules of Court, Rule 2.890(b), an interpreter “must use his or her best skills and judgment to interpret accurately without embellishing, omitting, or editing. When interpreting for a party, the interpreter must interpret everything that is said during the entire proceedings. When interpreting for a witness, the interpreter must interpret everything that is said during the witness’s testimony.”

Accordingly, the Court acknowledges that Plaintiff’s statement, despite being incomplete due to the interruption by counsel, should have been fully interpreted and recorded as per the standards set forth in Rule 2.890(b). However, the Court harbors reservations regarding the method proposed for retroactively adding the interpretation back on the records, particularly concerning the potential implications for accuracy.

Therefore, the Court DENIES the request to compel Spanish Interpreter, #301112, to supplement Plaintiff’s deposition transcript.

Request to Compel Plaintiff to Answer Previously Refused Question on Privacy Grounds

The moving Defendants request that Plaintiff answer a specific question without objection: “So what about the accident caused you to leave that job?”

Plaintiff has raised objections to this question, citing grounds of irrelevancy and privacy, as it probes into the reasons behind his departure from his job. (Opp’n., at 6.)

Upon review, the Court finds that the question posed by the moving Defendants is directly tailored to explore the causal link between Plaintiff’s injury and his subsequent departure from employment. This focus distinguishes the question from the broader, more general question as Plaintiff described in his Opposition, where he contends, “The question asked about why he left his job. This is irrelevant to the claim being made and seeks privacy matter.” (Opp’n., at 6.)

In personal injury actions, privacy right waived as to “directly relevant” information; and “privacy interests may have to give way to . . . opponent’s right to a fair trial.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 841 – 842.)

Considering the legal precedents, the Court agrees with the moving Defendants that this question is both relevant and reasonable, notwithstanding the privacy interests at stake.

Therefore, balancing Plaintiff’s privacy interests against the necessity for disclosure of directly relevant information in a personal injury action, the Court GRANTS the request to compel Plaintiff answer this question during the continued deposition.

The moving Defendants request monetary sanctions against Plaintiff, citing two Code of Civil Procedure sections as their basis.

First, the moving Defendant reference Code of Civil Procedure section 2025.440 subdivision (b), which provides: “If a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in Section 2020.240.” (Underlines added.)

The Court observes that the term “deposition subpoena” pertains specifically to nonparty deponent as per Code of Civil Procedure section 2020.210. Therefore, this section is inapplicable to the present case where Plaintiff is a party to the action.

Second, the moving Defendants argue that the Court shall impose sanctions against the party who unsuccessfully opposes a motion to compel deposition, citing Code of Civil Procedure section 2025.450.)

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court 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., § 2025.450, subd. (g), par. (1).)

The specific language from section 2025.450(g)(1) guides the Court’s consideration for imposing sanctions.

The moving Defendants request monetary sanctions totaling $10,000.00 in favor of Defendant City of Industry, and $1,100.00 in favor of Defendant L&M Construction, Inc.

For the City of Industry, after excluding the hours claimed for meet and confer process and Informal Discovery Conference (“IDC”), adjusting the hours claimed for drafting the Motion and attending the hearing, and recognizing that the Reply was filed prematurely before Plaintiff’s Opposition, the Court finds that 6 hours at an hourly rate of 440.00 to be reasonable, resulting in a sanction of $2,420.00.

Regarding L&M Construction, Inc., considering the activities listed and adjusting the total hours to reflect a reasonable expectation of the time required for these tasks, the Court calculates a total of $800.00 as a reasonable sanction, based on an hourly rate of $200.00 for the adjusted total of 4 hours spent on motion preparation, reply drafting and hearing attendance.

In conclusion, the Court GRANTS monetary sanctions against Plaintiff and his counsel, jointly and severally, in the amounts of $2,420.00 to the City of Industry and $800.00 to L&M Construction, Inc.

Defendants City of Industry and L&M’s Motion to Compel Deposition of Plaintiff is GRANTED IN PART.

Defendants to give notice for deposition of Plaintiff for a duration of one day, from 9:00 A.M. to 5:00 P.M., to be held within 60 days following the receipt of this order.

The deposition is to take place in person at 13300 Crossroads Pkwy. North, Suite 410, City of Industry, CA 91746.

Plaintiff and his counsel are ordered to pay $2,420.00 to City of Industry and $800.00 to L&M Contruction Inc., within 10 days from the receipt 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