Judge: Michael E. Whitaker, Case: 21STCV20874, Date: 2024-02-27 Tentative Ruling

Case Number: 21STCV20874    Hearing Date: February 27, 2024    Dept: 207

TENTATIVE RULING

In the first amended complaint filed on March 24, 2022, Plaintiff Pouria Keyvani  (“Plaintiff”) alleges that he was injured when shards of glass fell on him while he was present on property owned by Defendant Douglas Emmett Management, LLC (“Defendant”).  (See, e.g., First Amended Complaint, First Cause of Action.)   

On September 12, 2023, Defendant’s employee, Steve Pavlovski (“Pavlovski”), appeared for deposition.  Defendant objected to several questions posed to Pavlovski, instructing him not to answer, and Defendant objected to producing an incident report that Pavlovski testified that he reviewed in preparation for the deposition.    

Plaintiff moves the Court for orders compelling Defendant to produce Pavlovski for another deposition session to answer certain questions and to produce the incident report.  Defendant opposes the motion.  Plaintiff replies.    

PROCEDURAL REQUIREMENT - TIMELINESS OF MOTION

            “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.  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.  (Code Civ. Proc., § 2025.480, subds. (a)-(b), emphasis added; Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 321, fn. 3 [The 60-day deadline is mandatory depriving a trial court of jurisdiction to hear belated motions to compel].) 

            Defendant contends that Plaintiff’s motion is untimely because the “record” related to the deposition of Pavlovski was completed on September 26, 2023 when the court reporter advised that the deposition transcript was prepared and available.  (See Declaration of Silviana Dumitrescu, ¶ 5.)  Using the date when the transcript was prepared and available, September 26, the Court finds that the last day for Plaintiff to move to compel under Section 2025.480 was November 27, 2023.  However, Plaintiff filed the motion on December 22, 2023, 25 days after the statutory deadline.

            In reply, Plaintiff does not address the timeliness argument and fails to rebut Defendant’s assertion that the court report advised that the deposition transcript was prepared and available on September 26.  But in Plaintiff’s moving papers, Plaintiff contends that the motion deadline was triggered when Pavlovski signed the deposition transcript errata sheet on October 26, 2023.  (See Declaration of James Trotter, ¶ 8, Exhibit 3.)  Plaintiff’s advances that assertion without any legal authority, and the Court cannot find any support for the proposition that the motion deadline under Section 2025.480 is triggered by a deponent signing an errata sheet as opposed to when a deposition transcript is prepared and available. 

Here, the Court finds that Defendant has the better argument. 

CONCLUSION AND ORDERS

            Therefore, the Court denies Plaintiff’s motion to compel Steve Pavlovski to Answer Questions and Produce Documents at Deposition based upon Plaintiff’s failure to comply with Code of Civil Procedure section 2025.480, subdivision (b).  In short, the Court finds Plaintiff’s motion is untimely.

Defendant shall provide notice of the Court’s orders and file a proof of service of such.

DATED:  February 27, 2024                         ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court