Judge: Lisa R. Jaskol, Case: 21STCV00321, Date: 2023-11-30 Tentative Ruling
Case Number: 21STCV00321 Hearing Date: November 30, 2023 Dept: 28
Having considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On January 5, 2021, Plaintiff Arlex Parra (“Plaintiff”) filed this action against Defendants ASM Global Parent, Inc. (“ASM”), City of Long Beach (“City”), and Does I-XX for personal injuries and damages.
On March 10, 2022, ASM filed an answer.
On August 18, 2023, ASM filed a motion to compel Plaintiff’s further deposition testimony, to be heard on November 30, 2023. On November 15, 2023, Plaintiff filed an opposition. On November 20, 2023, ASM filed a reply.
Trial is scheduled for April 10, 2024.
PARTIES’ REQUESTS
ASM requests that the Court order Plaintiff to answer questions asked at his deposition and produce documents.
Plaintiff requests that the Court deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 2025.480 provides in part:
“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing 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.
“(b) This motion 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 under Section 2016.040.
“(c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.
* * *
“(h) Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion.
“(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.
“(j) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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, subds. (a), (b), (c), (h), (i), (j).)
DISCUSSION
A. Timeliness
Plaintiff argues that ASM’s motion is untimely. Under Code of Civil Procedure section 2025.480, subdivision (b), the deadline for the motion is “60 days after the completion of the record of the deposition.” (Code Civ. Proc., § 2025.480, subd. (b).) Citing a “Reporter’s Certificate,” Plaintiff asserts that the record of the deposition was completed on June 15, 2023. (Plaintiff’s Exhibit A.) If the Reporter’s Certificate established completion of the record of the deposition, the last day to file the motion would have been August 14, 2023, four days before ASM filed the motion.
The “Reporter’s Certificate,” dated June 15, 2023 and attached to the June 7, 2023 deposition transcript, states that (1) “previous to the commencement of the examination, the deponent was duly sworn by me to testify to the truth,” (2) “this deposition was taken remotely in shorthand by me at the time and place herein set forth and thereafter reduced to a typewritten form and that the foregoing constitutes a true and correct transcript,” and (3) “I am not related to, employed by, nor of counsel for any of the parties or attorneys herein, nor otherwise interested in the result of the within action.”
“It is unclear whether the deposition record is ‘completed’ when the reporter sends notice that the transcript is available for review [citation] or only after the expiration of time to sign or correct the transcript [citation].” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:801, pp. 8E-145 to 8E-145 (Cal. Practice Guide).) The Practice Guide observes that “[t]he safer course is to use the date of the reporter’s notice.” (Id., p. 8E-146.) Presumably, using the date of the reporter’s notice is safer because the law is unclear and using the earlier date as the beginning for the 60-day deadline avoids the kind of dispute we have here.
Code of Civil Procedure section 2025.520, subdivision (b), gives the deponent 30 days to “change the form or the substance of the answer to a question” and “either approve the transcript of the deposition by signing it, or refuse to approve the transcript by not signing it.” (Code Civ. Proc., § 2025.520, subd. (b); see Code Civ. Proc., § 2025.520, subds. (c), (f).) ASM asserts that “[t]he Court Reporter provided notice to [ASM] through service of the finalized transcript on June 21, 2023 . . . .” (Reply pp. 3-4.) ASM has not provided a copy of the notice.
The Court concludes that the 60-day period for filing ASM’s motion did not begin to run on June 15, 2023 as Plaintiff contends but instead began to run either when the court reporter provided notice that the transcript had been finalized or when the 30-day period provided by Code of Civil Procedure section 2025.520 ended. The motion is timely.
B. Meet and confer
Plaintiff argues that ASM did not engage in adequate meet and confer efforts before filing the motion. The Court has reviewed parties’ papers and concludes that ASM’s meet and confer efforts were adequate.
C. Deposition testimony
1. Previous lawsuits and workers’ compensation claims
In his complaint, Plaintiff alleges that in January 2020, while attending an event at the Long Beach Convention Center, he slipped and fell on a wet surface. As a result, Plaintiff allegedly suffered pain in his neck, back, left and right shoulders, right elbow, right and left hips, and right knee. He also alleges that he suffered resulting left-hand numbness, head contusion, headaches and vertigo.
On May 15, 2023, ASM served a notice of Plaintiff’s deposition with a request for production of documents. The deposition was scheduled for June 7, 2023. Plaintiff did not object to the notice.
On June 7, 2023, Plaintiff appeared for the deposition. During the deposition, Plaintiff’s counsel instructed Plaintiff not to answer several questions about Plaintiff’s previous lawsuits, a workers’ compensation claim, and Plaintiff’s medical history. Plaintiff followed his counsel’s instructions and did not answer these questions.
At a deposition, “an objection does not excuse the deponent from the duty to answer unless the objecting party demands the deposition be suspended to permit a motion for protective order, or if the witness is instructed not to answer to protect privilege or privacy.” (Cal. Practice Guide, supra, ¶ 8:733, p. 8E-123.)
“It is generally improper, however, for counsel to instruct a witness not to answer on grounds other than privilege, privacy, trade secrets, or other matters statutorily or constitutionally exempt from discovery.” (Cal. Practice Guide, supra, ¶ 8:734.2, p. 8E-124, citing Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013-1005.) “Irrelevance alone is an insufficient ground to justify instructing a witness not to answer a deposition question . . . .” (Id., ¶ 8:734.4, p. 8E-124.)
In instructing Plaintiff not to answer questions about his previous lawsuits and workers’ compensation claims, Plaintiff’s counsel asserted objections based on relevance. Counsel’s instruction to Plaintiff not to answer these questions was improper. (See Cal. Practice Guide, supra, ¶ 8:734.4, p. 8E-124.) The Court grants ASM’s motion to compel further answers to these questions.
2. Medical history
“A deponent who has objected to a question and refused to answer bears the burden of justifying such refusal on the motion to compel. For example, if the objection was that the question called for privileged information, the burden is on the deponent to show that the question in fact calls for information protected by a privilege.” (Cal. Practice Guide, supra, ¶ 8:814, pp. 8E-148 to 8E-149.)
“Although a plaintiff suing for personal injuries waives the physician-patient privilege with respect to the conditions in controversy [citation], plaintiff still has a right of privacy in plaintiff’s medical records. Compelled disclosure of the records turns on balancing the need for disclosure against the need for confidentiality. Ordinarily, disclosure of relevant medical history is allowed because defendants have no other means by which to obtain this information. [Citations.] [¶] But this does not open up plaintiff’s ‘lifetime’ medical history. Plaintiff still has privacy rights as to physical and mental conditions unrelated to the claim or injury sued upon.” (R. Fairbank, N. Epstein, M. Wegner & L. Wegner, Cal. Practice Guide: Civil Trials and Evidence (Rutter 2022) ¶ 8:2720, p. 8E-235.)
Here, Plaintiff’s counsel asserted a privacy objection in instructing Plaintiff not to answer questions about his medical treatment, hospitalizations, and physicians before 2018 and doctor’s visits before the incident in January 2020.
The Court has reviewed the deposition transcript excerpts and concludes that Plaintiff has not carried his burden of showing that the questions ASM’s counsel asked regarding Plaintiff’s medical treatment violates his right to privacy. Balancing the need for disclosure against the need for confidentiality, the Court finds that these questions seek information that is relevant to Plaintiff’s claimed injuries in this case. Therefore, the Court grants ASM’s motion to compel Plaintiff to answer these questions.
D. Documents
ASM requests that the Court order Plaintiff to produce all documents requested in the deposition notice. Although Plaintiff did not object to the document request or seek a protective order, he failed to produce some of the documents included in the request.
The Court orders Plaintiff to produce all documents requested in ASM’s deposition notice that Plaintiff did not previously produce.
CONCLUSION
The Court GRANTS Defendant ASM Global Parent, Inc.’s motion to compel Plaintiff Arlex Parra’s further deposition testimony. The Court orders Plaintiff to appear for a further deposition within 30 days of the hearing on the motion and answer the questions he previously refused to answer and produce the responsive documents he previously did not produce.
The Court DENIES Plaintiff Arlex Parra’s request for sanctions.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.