Judge: Mark H. Epstein, Case: 22SMCV01060, Date: 2023-08-23 Tentative Ruling

Case Number: 22SMCV01060    Hearing Date: March 22, 2024    Dept: I

The court has reviewed the transcript.  The motion is GRANTED.

The court is, frankly, disappointed at the tenor and tone of the opposition.  While the ex parte was hardly an exercise in civility, the opposition is simply over the top.  The court lost count of the number of personal attacks on defendant’s counsel therein.  And plaintiff seems to think it is an extraordinary show of restraint to allow ten questions to be asked without a speaking objection.  It is not.  The court does not here address or attempt to address the defendant’s behavior at defendant’s deposition—that is not before the court.  But the court has read the entire transcript—front to back.  It was a painful exercise, but necessary.  While neither side was perfect, it appears that plaintiff’s view of proper deposition behavior and the court’s view are quite different.  Certainly the court will not sua sponte sanction the defense, as plaintiff aggressively requests.  The court has read the objections and declaration filed by defendant yesterday.  The objections are OVERRULED.

In the court’s view, plaintiff’s counsel’s deposition conduct was unacceptable.  The speaking objections were too numerous to count and, in the court’s view, quickly crossed the line into improper coaching.  Further, when plaintiff and counsel left the deposition, they lacked any cause.  Rather, it appears that they returned from a break after they discovered that two additional people were present.  Plaintiff is correct that defendant mis-handled that situation.  Additional counsel had the right to be present and did not need to be identified ahead of time.  But counsel did need to state and appearance as soon as possible after logging in.  And plaintiff is correct about the client representative.  There is no “right” to have a client representative present at the deposition.  That person must be identified days before the deposition.  The reason is to give the deponent time to object.  A human litigant has the right to be present, but not a “representative.”  Moreover, under any circumstance, the person must state an appearance as soon as possible.  That was not done, and plaintiff had a legitimate grievance.  But the response is to go off the record and meet and confer.  Had plaintiff done so, presumably defense counsel would have made the offer made on the record when the deposition resumed—to have those individuals leave.  That would have allowed the deposition to go forward.  The parties could deal with the violation later—if it was serious enough to warrant further discussion (it likely was not).  Instead, it appears that plaintiff was only on the record long enough to state plaintiff was leaving.  And, if plaintiff’s counsel’s declaration is to be believed, plaintiff and counsel must have then sprinted out of the room.  The transcript shows that plaintiff’s counsel announced “Mr. Amir and I are going to excuse ourselves, and we’ll leave it up to you to bring it up to the judge.”  He concludes, a sentence later with “So thank you.”  Defense counsel immediately says “No. We’re not” but plaintiff’s counsel interrupts and says “We’re off the record.”  Defense counsel immediately says “We’re not going off the record.  On the record, as I would like to state, that is not a basis to leave.  I am happy to have the individuals not be present if it bothers you.”  But apparently in that time, plaintiff and counsel had left.  Or perhaps they were there but just not listening.  The offer is on the record, so it is hard for plaintiff’s counsel to say credibly that it was not made.

Because the trial date is so close, defendant may set the continued deposition date for any time between Thursday March 28, 2024 and April 5, 2024, during the work week, but notice will be given no later than Friday, March 22, 2024 at 4:00 pm.  Plaintiff and plaintiff’s counsel are ORDERED to attend, although they may request (but not demand) a different day.  Any objections shall be limited to the word “Objection” followed by the statute number or case name supporting the nature of the objection.  If counsel instructs the witness, counsel may do so, but only on the ground of a statutory privilege found in the Evidence Code.  If counsel believes that the deposition has become badgering, counsel may object by saying “Objection, badgering.”  If it becomes so bad that counsel believes that it is necessary to stop the deposition, counsel may do so, but if counsel is incorrect, plaintiff will not be permitted to testify at trial.  If there is an answer that plaintiff’s counsel in good faith believes is confidential or private in nature, counsel may designate that part of the transcript to be confidential pursuant to the Los Angeles County Superior Court’s confidentiality standard order, which the court hereby adopts.  No one shall be present at the deposition other than counsel, the witness, defendant (if defendant chooses to attend) the court reporter, the videographer, and anyone else the parties agree may be present.  More than one counsel may attend, but all shall be announced immediately upon joining.  The first day of deposition will count as 1 hour, leaving plaintiff with an additional 6 hours.  The 6 hours will exclude any time plaintiff’s counsel is speaking.  If plaintiff’s counsel conducts a re-direct, defense counsel will have a like amount of time after the re-direct to ask additional questions.  There will be no more than1 break before lunch and 1 after lunch, each for 10 minutes.  Lunch will start between 12:30 and 12:45 at defendant’s discretion and will last no more than 30 minutes.  Additional breaks may be had by agreement of the parties or by request of the court reporter or to change video tapes.  If necessary to consult with the client on a matter of privilege, and additional break of no more than 1 minute may be taken; however, this is limited to consultations of privilege relating to a question asked.  No break will occur other than for consultation as to privilege while a question or line of questions (closely related) is pending.  The deposition will start at 9:30 and end at 5:30.  If not completed, it will go day to day, weekends and holidays excepted.  If this goes beyond the discovery cut off, the cut off is extended to allow the completion.  The parties may, by stipulation, alter these rules.

Because this came up ex parte, sanctions will not be awarded.  However, plaintiff’s counsel will be responsible for the costs of the continued deposition, meaning court reporter fees (but not the cost of the transcript to defendant), videographer fees, and any other fees related to the deposition other than attorneys’ fees.

The court expects the behavior of all counsel to improve—especially plaintiff’s counsel.  The court warns the parties that the failure to improve will result in a very difficult trial for the offender.