Judge: Michael Small, Case: 23STCV22115, Date: 2025-05-19 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 23STCV22115    Hearing Date: May 19, 2025    Dept: 57

The Court is granting in part Defendants' motion to compel the deposition of the Plaintiff.

Plaintiff objected to Defendants' notice of his deposition.  The basis of Plaintiff's objection is that the Defendants previously deposed him two years ago in an action Plaintiff brought against the Defendants in federal court arising from the same incident on which Plaintiff's action in this Court is based.  (After the federal action was dismissed as to Plaintiff's federal claims, Plaintiff filed this action on his state law claims.)  From there, Plaintiff argues that Defendants' notice of his deposition in this action runs afoul of the "one deposition" rule in Code of Civil Procedure Section 2025.610(a).  That rule states "[o]nce a party has taken the deposition of any 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 . . . may take a subsequent deposition of that deponent."

In the briefing on the Defendants' motion, neither side cited any precedent (and the Court is unaware of any) addressing whether the single deposition rule in Section 2025.610(a) precludes a party to an action from noticing a deposition of another party to the action who was deposed by the noticing party in a prior action between the parties involving the same issues.  In the Court's view, the answer to that question is no.  That answer is rooted in the text of Section 2025.610(a), which refers to a party's taking of a deposition of another party "to the action."   The text does not refer to the taking of deposition of the party in some other, prior action between the parties.  In other words, the single deposition rule of Section 2025.610(a) does not forbid Defendants from noticing and taking Plaintiff’s deposition in this action even though the Defendants’ noticed and took his deposition in the prior federal action.

This equation is not altered by Section 2025.620(g). That provision says that "[w]hen an action has been brought in any court of the United States or of any state, and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the initial action may be used in the subsequent action as if originally taken in the subsequent action."   This provision would allow the parties to this action to use the Plaintiff's deposition in the federal action.  It does not, however, mean that the Defendants cannot take Plaintiff's deposition in this action.

To the extent that there is doubt as to whether the single deposition rule of Section 2025.610(a) permits Defendants to take Plaintiff's deposition in this action after having deposed him in the federal action two years ago, the Court finds good cause under Section 2025.610(b) to allow the deposition to go forward.  Section 2025.610(b) states that "[n]otwithstanding" the single deposition rule of Section 2025.610(a), the court may grant leave to take a subsequent deposition. . . . "   Based on the record before the Court, good cause for the deposition exists because there is additional, new evidence bearing on Plaintiff's asserted injuries he sustained in the incident giving rise to the federal action and this action that was not available to the Defendants when they took the Plaintiff's deposition in the federal action.

By the same token, however, to avoid the possibility that the Defendants will use the deposition to replough ground they covered in the deposition of Plaintiff in the federal action, the additional, new evidence that was unavailable to the Defendants at the prior deposition shall serve to limit the scope of the deposition in this action. Specifically, the Court is allowing Defendants to ask the Plaintiff in the deposition about developments related to his asserted economic, physical, and psychological injuries in the period since the deposition in the federal action was taken.  This inquiry shall be informed by, but not necessarily limited to, recent medical records of the Plaintiff's that were not available to the Defendants when the deposition in the federal action was taken.  This restriction on the subject matter of the deposition is one that the Plaintiff proposed to Defendants as a way to resolve the dispute over the deposition notice.  The Court also is limiting the amount of time for the Plaintiff’s deposition to 3.5 hours, which is half of the normal 7 hour period allotted for a deposition under Section 2025.290(a). 

While the Court is granting Defendant’s motion to compel Plaintiff’s deposition, the Court is denying Defendants’ request made in the motion for an order imposing monetary sanctions against Plaintiff for having objected to the deposition notice.  Plaintiff’s objection to the deposition notice and the position it took in opposing Defendants’ motion were substantially justified in light of the lack of precedent on the application of the single deposition rule to the facts of this case.  Furthermore, in the end, the Court is imposing the subject matter restriction for the deposition that Plaintiff proposed.  Under these circumstances, monetary sanctions against the Plaintiff are unwarranted.