Judge Lynette Gridiron Winston, Case Number: 23PSCV01447, Date: 2024-07-03 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV01447, Date: 2024-07-03 Tentative Ruling

CASE NAME: Justin Charles Johnson v. Miguel Angel Rodriguez, Jr., et al.

Motion to Compel Miguel Angel Rodriguez, Jr. to Appear and Testify at Continued Deposition

The Court grants leave for Plaintiff to conduct a subsequent deposition of defendant Rodriguez. Plaintiff must serve an amended deposition notice according to Code and permit at least ten (10) calendar days’ notice as required. Defendant Miguel Angel Rodriguez, Jr. must appear and testify at such second deposition within 30 days of the Court’s order, unless a later date is agreed upon by counsel.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is a personal injury action arising from a car accident. On May 12, 2023, plaintiff Justin Charles Johnson (Plaintiff) filed this action against defendants Miguel Angel Rodriguez, Jr., Golden Moving Enterprise LLC (Defendants), and Does 1-20, alleging causes of action for negligence and negligence per se.

On June 5, 2024, Plaintiff moved to compel Rodriguez to appear and testify at continued deposition. On June 20, 2024, Rodriguez opposed the motion. Plaintiff did not reply.

The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying.

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.

(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.

(b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.

A motion to compel answers or produce documents at a deposition requires the parties to meet and confer. (Code Civ. Proc., § 2025.480, subd. (b).)[1] It is unclear to the Court to what extent the parties met and conferred before Plaintiff brought this motion, (Mohamadi Decl., ¶ 13), but the Court also notes Rodriguez’s opposition does not indicate that the parties failed to meet and confer, (Park Decl., ¶¶ 2-4). Accordingly, the Court finds the parties’ meet-and-confer efforts sufficient, but admonishes Plaintiff to provide more details going forward regarding those meet-and-confer efforts.

Plaintiff seeks to conduct another deposition of Defendant Rodriguez. Plaintiff contends that Plaintiff began Rodriguez’s deposition on December 15, 2023, but that his deposition revealed certain information that had been improperly withheld previously, such as photographs at the scene of the accident sent to his employer, the existence of GPS data, and dash camera footage of the accident. Plaintiff indicates the deposition was suspended pending the production of the previously withheld materials. Plaintiff further states that Plaintiff was able to obtain dash camera footage from a third party, and upon review, Plaintiff realized Rodriguez had perjured himself during his deposition. Plaintiff served notice of the continued deposition for Rodriguez, and after some back and forth, the parties agreed on May 31, 2024. However, on May 28, 2024, Rodriguez objected to the taking of the deposition, citing Code of Civil Procedure section 2025.610, subdivision (a), regarding second depositions.

In opposition, Rodriguez contends Plaintiff unilaterally suspended the deposition without stipulation from Rodriguez’s counsel, which is required under Code of Civil Procedure section 2025.470. Rodriguez contends there is no good cause for a continued or further deposition because Rodriguez already testified that he was not in possession of the items at issue, and that he was not in possession of any photographs or videos at the time of the deposition. Rodriguez contends his counsel did not stipulate to a continued session of Rodriguez’s deposition, and a continued deposition would not uncover relevant additional facts for this matter. Rodriguez further contends he properly objected to the continued deposition, and that just because his counsel agreed to dates for a continued deposition did not constitute a waiver of any objections. Rodriguez contends Plaintiff failed to cite any authority to support this contention.

Plaintiff May Not Compel Later Attendance at a Unilaterally Suspended Deposition

“The deposition officer may not suspend the taking of testimony without the stipulation of all parties present unless any party attending the deposition, including the deponent, demands that the deposition officer suspend taking the testimony to enable that party or deponent to move for a protective order ... .”

Neither party provided the Court with any stipulation to suspend the deposition or that any party demanded the deposition be suspended to move for a protective order. Thus, in order to suspend Rodriguez’s deposition, all parties needed to stipulate. Defendants’ counsel states she did not stipulate. (Park Decl., ¶ 2.) Plaintiff does not contend otherwise. (See MPA, 4:25-26 [deposition “was suspended”]; Mohamadi Decl., ¶¶ 1-14 [no claim of stipulation]; id., Exh. 6 [deposition excerpt, no stipulation].)

Without a stipulation, Plaintiff’s “motion to continue a suspended deposition” must fail. The Court construes this motion as a motion for leave to conduct a subsequent deposition, brought pursuant to Code of Civil Procedure section 2025.610.[2]

In general, “[o]nce any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.” (Code Civ. Proc., § 2025.610(a).)

However, “[n]otwithstanding subdivision (a)[of section 2025.610, supra], for good cause shown, the court may grant leave to take a subsequent deposition ... .” (Id., subd. (b).)

The Court finds good cause exists for requiring Rodriguez to sit for a second deposition. While the Court agrees with Rodriguez that Plaintiff could not unilaterally suspend the prior deposition on December 15, 2023, (see Code Civ. Proc., § 2025.470), that does not change the outcome here. Rodriguez offered May 31, 2024 as a date for a second deposition and Plaintiff agreed on that date. (Mohamadi Decl., Ex. 7.) Plaintiff subsequently served an amended notice of deposition for May 31, 2024. (Mohamadi Decl., Ex. 8.) The Court reads this as a stipulation to a second deposition under Code of Civil Procedure section 2025.610, subdivision (b). (Code Civ. Proc., § 2025.610, subd. (b).)

Moreover, Rodriguez’s objection on May 28, 2024 was not made in good faith. At no point in the parties’ prior discussions regarding a second deposition did Rodriguez ever mention the limitations provided in Code of Civil Procedure section 2025.610, subdivision (a), or object on that basis. (Mohamadi Decl., Exs. 5-7.) Furthermore, Plaintiff identifies specific responsive documents that were not produced prior to Rodriguez’s deposition. He also identifies good cause why Rodriguez’s credibility could be questioned. There is no apparent prejudice to Rodriguez sitting for a second deposition.

Defendants do not contradict any of Plaintiff’s contentions. They argue he improperly noticed a second deposition without leave of court – which is correct – but they do not deny he has good cause to conduct one.

Based on the foregoing, the Court GRANTS Plaintiff’s motion. Defendant Rodriguez must sit for a second deposition within 30 days of the Court’s order.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] The Court notes that Plaintiff moves under both Code of Civil Procedure sections 2025.480 and 2025.610, subdivision (b), the latter of which does not appear to require evidence of meet-and-confer efforts. (See Code Civ. Proc., §§ 2025.480, 2025.610.)

[2] The Court does not read the May 31, 2024 deposition as a continued deposition, but rather as a second deposition under Code of Civil Procedure section 2025.610, subdivision (b). The deadline for Plaintiff to have moved to compel based on the prior deposition was 60 days from the date the parties received the deposition transcript from the court reporter. (See Code Civ. Proc., § 2025.480, subd. (b); 15. [8:787] Motion to Compel Answers:, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-15 [“completion of the record” determined upon either the court reporter sending the transcript or the expiration of the time to sign or correct the transcript].) The deposition transcript submitted with the moving papers does not indicate when it was completed, but the Court infers it was completed more than 60 days before Plaintiff filed this motion. (See Mohamadi Decl., Ex. 3; Id., Ex. 5 [March 21, 2024 email from Plaintiff’s counsel regarding second deposition date].)