Judge Robert B. Broadbelt, Case Number: 22STCV10458, Date: 2024-08-19 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV10458, Date: 2024-08-19 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

The court considered the moving and opposition papers filed in connection with this motion. The court notes that the reply papers were filed one court day late, on August 13, 2024. (Code Civ. Proc., § 1005, subd. (b).) The court has exercised its discretion to consider the reply papers.

Plaintiff Sofia Jamora (“Plaintiff”) moves the court for an order compelling deponent Officer Robert T. Tamate (“Officer Tamate”) to answer six categories of questions asked by Plaintiff’s counsel at his deposition on December 13, 2023.

“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.” (Code Civ. Proc., § 2025.480, subd. (a).) “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, subd. (b).)

First, the court finds that this motion is timely. (Code Civ. Proc., § 2025.480, subd. (b).)

As set forth above, a motion to compel answers at a deposition must be made “no later than 60 days after the completion of the record of the deposition . . . .” (Code Civ. Proc., § 2025.480, subd. (b).) Officer Tamate’s deposition was taken on December 13, 2023, and the court reporter notified the parties that his deposition transcript was available for review on December 28, 2023. (Baghdishyan Decl., ¶¶ 5, 8; Baghdishyan Decl., Ex. B.) The parties did not present evidence showing that (1) Officer Tamate signed the transcript upon receipt of the transcript, or (2) Officer Tamate signed the transcript on any other date following revisions to the transcript. (Code Civ. Proc., § 2025.520, subd. (b) [for 30 days following the notice of availability of transcript, deponent may change the form or substance of an answer to a question and may approve or refuse to approve the transcript].)

While the court agrees with Defendant that a deposition for the production of records is complete as of the date of service of objections or the production, the parties have not cited authority interpreting the completion of the deposition record as it relates to an oral deposition. (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1032 [“The deposition [for business records] was therefore complete when these objections were served, and the 60-day period to file a motion to compel began on that date”]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024), ¶ 8:801 [“It is unclear whether the deposition record is ‘completed’ when the reporter sends notice that the transcript is available for review [citation] or only after the expiration of time to sign or correct the transcript [citation]”] [internal citations omitted] [internal italics omitted].) The court finds that the record of the deposition is complete upon the expiration of the 30-day period of time for the deponent to change the form or the substance of an answer to a question because, until that time expires, the deposition record may be changed by the deponent, such that the parties conducting the deposition cannot rely on the original transcript to meet and confer and prepare a motion to compel answers. (Code Civ. Proc., § 2025.520, subd. (b); see Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1032 [noting that, upon receipt of responses, including objections, to a business records subpoena, “‘the subpoenaing party has all of the information it needs to prepare a motion to compel[,]’” such that objections served by the nonparty constitute the record of the deposition].)

Here, the parties were given notice that the original transcript of Officer Tamate’s deposition was available on December 28, 2023. (Baghdishyan Decl., Ex. B.) Officer Tamate therefore had until January 29, 2024, i.e., 30 days after that date,[1] to change his answers. (Code Civ. Proc., § 2025.520, subd. (b).) The court has not been presented with evidence showing that Officer Tamate approved the transcript by signing it before the 30-day period elapsed. (Ibid.) Thus, the court finds that (1) the deposition record was completed as of January 29, 2024, and (2) Plaintiff filed this motion on March 13, 2024, i.e., within 60 days of that date. (Code Civ. Proc., § 2025.480, subd. (b).)

Second, the court finds that Plaintiff has submitted evidence showing that counsel for Plaintiff made a reasonable and good faith attempt to informally resolve the issues presented in this motion with counsel for deponent Officer Tamate. (Code Civ. Proc., §§ 2025.480, subd. (b), 2016.040.)

Third, the court grants in part and denies in part Plaintiff’s motion as follows.

The court denies Plaintiff’s motion to compel Officer Tamate to answer “Dispute No. 1” because the separate statement as to this dispute is incomplete since it does not set forth “[t]he text of the . . . question” that is in dispute as required, and instead sets forth only the text of counsel’s conversation and objections following the question. (Cal. Rules of Ct., rule 3.1345, subd. (c)(1); Mills v. US Bank (2008) 166 Cal.App.4th 871, 893 [court has discretion to deny discovery motion that does not comply with separate statement requirement].)

The court grants Plaintiff’s motion to compel Officer Tamate to answer the three questions in “Dispute No. 2” set forth on page 4, lines 12-13 and 17-19, and page 5, lines 1-3 of Plaintiff’s Separate Statement, filed March 13, 2024, because (1) Defendant and counsel for Officer Tamate did not assert a specific objection to the disclosure of information on the ground that it is privileged and therefore waived their right to object on this ground; (2) even if they had objected on this ground, that objection would be without merit because Defendant did not present evidence showing that the meeting about which Plaintiff questioned Officer Tamate concerned the mediation between the parties, such that Officer Tamate was being asked to disclose statements or admissions made for the purpose of, in the course of, or pursuant to a mediation or a mediation consultation; and (3) the objections on the ground of relevance are without merit because the questions seek information that is relevant to the subject matter involved in the pending action and is reasonably calculated to lead to the discovery of admissible evidence. (Pl. Sep. Statement, pp. 4:12-13, 4:17-19, 5:1-3; Code Civ. Proc., § 2025.460, subd. (a); Evid. Code, § 1119, subd. (a).)

The court grants Plaintiff’s motion to compel Officer Tamate to answer the five questions in “Dispute No. 3” set forth on page 5, lines 20-21, page 6, lines 8-9, 19, and 23-25, and page 7, lines 3-5 of Plaintiff’s Separate Statement because (1) Defendant and counsel for Officer Tamate did not assert a specific objection to the disclosure of information on the ground that it is privileged and therefore waived their right to object on this ground; (2) even if they had objected on this ground, that objection would be without merit because Defendant did not present evidence showing that the meeting and possible offer of money about which Plaintiff questioned Officer Tamate concerned the mediation between the parties, such that Officer Tamate was being asked to disclose statements or admissions made for the purpose of, in the course of, or pursuant to a mediation or a mediation consultation; and (3) the objections on the ground of relevance are without merit because the questions seek information that is relevant to the subject matter involved in the pending action and is reasonably calculated to lead to the discovery of admissible evidence. (Pl. Sep. Statement, pp. 5:20-21, 6:8-9, 6:19, 6:23-25, 7:3-5; Code Civ. Proc., § 2025.460, subd. (a); Evid. Code, § 1119, subd. (a).)

The court grants Plaintiff’s motion to compel Officer Tamate to answer the question in “Dispute No. 4” set forth on page 7, line 26 of Plaintiff’s Separate Statement because (1) Defendant and counsel for Officer Tamate did not assert a specific objection to the disclosure of information on the ground that it is privileged and therefore waived their right to object on this ground; (2) even if they had objected on this ground, that objection would be without merit because Defendant did not present evidence showing that the meeting(s) about which Plaintiff questioned Officer Tamate concerned the mediation between the parties, such that Officer Tamate was being asked to disclose statements or admissions made for the purpose of, in the course of, or pursuant to a mediation or a mediation consultation; and (3) the objection on the ground of relevance is without merit because the question seeks information that is relevant to the subject matter involved in the pending action and is reasonably calculated to lead to the discovery of admissible evidence. (Pl. Sep. Statement, p. 7:26; Code Civ. Proc., § 2025.460, subd. (a); Evid. Code, § 1119, subd. (a).)

The court grants Plaintiff’s motion to compel Officer Tamate to answer the question in “Dispute No. 5” set forth on page 8, lines 17-18 of Plaintiff’s Separate Statement because (1) Defendant and counsel for Officer Tamate did not assert a specific objection to the disclosure of information on the ground that it is privileged and therefore waived their right to object on this ground; (2) even if they had objected on this ground, that objection would be without merit because Defendant did not present evidence showing that the meeting and possible offer of money about which Plaintiff questioned Officer Tamate concerned the mediation between the parties, such that Officer Tamate was being asked to disclose statements or admissions made for the purpose of, in the course of, or pursuant to a mediation or a mediation consultation; and (3) the objection on the ground of relevance is without merit because the question seeks information that is relevant to the subject matter involved in the pending action and is reasonably calculated to lead to the discovery of admissible evidence. (Pl. Sep. Statement, p. 8:17-18; Code Civ. Proc., § 2025.460, subd. (a); Evid. Code, § 1119, subd. (a).)

The court denies Plaintiff’s motion to compel Officer Tamate to answer the question in “Dispute No. 6” because the separate statement is incomplete since it does not set forth “[t]he text of the . . . question” that is in dispute as required. (Cal. Rules of Ct., rule 3.1345, subd. (c)(1); Mills, supra, 166 Cal.App.4th at p. 893 [court has discretion to deny discovery motion that does not comply with separate statement requirement].)

The court denies Defendant’s request for monetary sanctions against Plaintiff. (Code Civ. Proc., § 2025.480, subd. (j).)

The court grants plaintiff Sofia Jamora’s motion to compel answers at deposition as follows.

The court orders Robert T. Tamate (1) to appear for another session of deposition to be taken by plaintiff Sofia Jamora in this action within 30 days of the date of this order, and (2) to answer the questions set forth on pages 4:12-13, 4:17-19, 5:1-3, 5:20-21, 6:8-9, 6:19, 6:23-25, 7:3-5, 7:26, and 8:17-18 of the separate statement filed by plaintiff Sofia Jamora on March 13, 2024, and to answer reasonable follow-up questions.

[1] The court has calculated 30 days from December 28, 2023 to be Saturday, January 27, 2024. Thus, the time to correct the deposition record expired on Monday, January 29, 2024. (Code Civ. Proc., §§ 12a, subd. (a), 12b.)

sofia jamora ; Plaintiff, vs. jaxson hayes , et al.; Defendants.	Case No.:	22STCV10458

	Hearing Date:	August 19, 2024

	Time:	10:00 a.m.

	[tentative] Order RE: plaintiff’s motion to compel answers to questions at deposition