I. BACKGROUND 

Plaintiff Hector Hugo Salazar Mata (“Plaintiff”) filed this action against defendants Superior Plastering of California, Does 1 to 5 individually and d/b/a Superior Plastering of California, and Does 6 to 100 for damages arising an unsafe work environment in which Plaintiff fell from a scaffolding.  

Stanley Caron dba Superior Plastering of California, erroneously sued as Superior Plastering of California, filed a First Amended Cross-complaint against S&D Drywall, S&H construction Builder Corporation, and Roes 1 to 50. S&H Construction Builder Corporation dba S&D Drywall, erroneously sued as S&D Drywall and S&H Construction Builder Corporation, (“S&D Drywall”) filed its own cross-complaint against Zoes 1 to 50. 

S&D Drywall now moves to compel a second deposition of Plaintiff. Plaintiff opposes the motion, and S&D Drywall filed a reply. 

S&D Drywall avers that a few weeks before Plaintiff’s May 12, 2022 deposition, Plaintiff served supplemental interrogatories claiming for the first time that the incident resulted in PTSD, major depressive order, somatic symptom disorder, alcohol abuse disorder, suicidal ideations, hearing voices, vision issues, insomnia, memory loss and issues with thinking clearly and temper issues. Counsel for S&D Drywall deposed Plaintiff, and learned of schizophrenic symptoms, suicide attempts, continued substance abuse, and incarceration.  

S&D Drywall argues there is good cause to compel a second deposition because Plaintiff’s medical records demonstrate that Plaintiff was checked into rehab a few weeks after the deposition, and that Plaintiff consumed alcohol and threatened suicide again. S&D contends that it has the right to investigate these issues that were not possible at his first deposition.  

Plaintiff argues there is no good cause for a second deposition, because S&D Drywall acknowledges in its moving papers that it was already aware of Plaintiff’s psychological claims, alcohol abuse, auditory hallucinations, and suicide attempts that were disclosed weeks before the deposition. Plaintiff further contends that one month before the deposition, on April 12, 2022, Plaintiff produced his treating psychologist’s report regarding Plaintiff’s psychological evaluation. Plaintiff argues that just because he underwent further treatment and continues to suffer from conditions that were disclosed prior to his deposition, and which he testified to, is not good cause for a subsequent deposition.  

S&D Drywall D contends that disclosure of the symptom a few weeks before was not enough time for S&D Drywall to serve related subpoenas to new medical treaters/obtain additional written discovery responses. S&D Drywall reiterates that Plaintiff provided inconsistent testimony at his deposition in comparison to his medical records after the deposition, and that Plaintiff withheld information of his condition for years.  

II. MOTION TO COMPEL SUBSEQUENT DEPOSITION 

CCP § 2025.610 states: 

Here, Plaintiff appeared for his deposition on May 12, 2022. Plaintiff’s psychological and substance abuse issues were disclosed to S&D Drywall three weeks prior to the deposition. S&D Drywall argues that Plaintiff provides no explanation of why these claims were not disclosed during initial discovery. However, it is undisputed that Plaintiff did indeed disclose all those conditions three weeks prior to his deposition, and S&D Drywall examined Plaintiff on those claims. Further, the Court finds S&D Drywall’s arguments that it did not have enough time to subpoena records and serve additional discovery unpersuasive. S&D Drywall, informed as it was of Plaintiff’s additional claims and treatment prior to, could have continued Plaintiff’s deposition to a future date to provide itself more time to subpoena the records and to propound additional written discovery. Nothing obligated S&D Drywall to proceed with the deposition on the date noticed, especially considering its own understanding that additional discovery would be necessitated due to the disclosure.   

S&D Drywall has not sufficiently demonstrated good cause for second deposition of Plaintiff for continuing claims it was already aware of, and for essentially impeachment purposes due to the purported contradictions between Plaintiff’s deposition testimony and medical records obtained thereafter. Accordingly, S&D Drywall’s motion to compel the second deposition of Plaintiff is DENIED.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 28th day of March 2024