Judge: Ronald F. Frank, Case: 22STCV32700, Date: 2024-07-25 Tentative Ruling
Case Number: 22STCV32700 Hearing Date: July 25, 2024 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: July 25, 2024¿
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CASE NUMBER: 22STCV32700
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CASE NAME: Kenneth Alexander v. Slater
Waterproofing, Inc., et al.
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MOVING PARTY: (1) Plaintiff, Kenneth Alexander
(2) Defendant,
City of Redondo Beach
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RESPONDING PARTY: (1)
Defendant, City of Redondo Beach
(2) Plaintiff,
Kenneth Alexander
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TRIAL DATE: Not Set.
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MOTION:¿ (1) Plaintiff’s Motion to Compel Deponent, Lauren Sablan to Answer
Questions She Was Instructed Not to Answer at Deposition
(2) Plaintiff’s
Request for Sanctions
(3) Defendant’s
Motion for Protective Order Regarding Deposition of Lauren Sablan
(4) Defendant’s
Request for Sanctions
(5) Case Management
Conference
Tentative Rulings: (1) GRANTED
as to 1 and the single combined questions 2-5.
(2)
ARGUE amount
(3)
DENIED
(4)
DENIED
(5) The Court intends to conduct CMC after
hearing the motions
I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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On October 5, 2022, Plaintiff, Kenneth
Alexander (“Plaintiff”) filed a complaint against Defendants, Slater
Waterproofing, Inc., City of Redondo Beach, County of Los Angeles, Sika
Corporation, and DOES 1 through 50. The complaint alleges causes of action for:
(1) Negligence; (2) Premises Liability; and (3) Products Liability. Plaintiff’s
complaint alleges that he was riding his bicycle on the designated bike path
through the Redondo Beach Pier parking garage, when due to the slippery
concrete, Plaintiff’s bike slid out from under him, throwing Plaintiff to the
ground and causing him to sustain serious bodily injuries including a broken
arm.
Plaintiff now files a motion compelling
deponent, Lauran Sablan (“Sablan”), to answer questions she was instructed not
to answer at the deposition. Plaintiff contends that on January 24, 2024,
Defendant, City of Redondo Beach produced Lauran Sablan as their person most
qualified (“PMQ”). Specifically, Plaintiff argues that Sablan was designated as
Defendant, City’s PMQ for category no. 17, i.e., any work, construction,
repairs, or maintenance performed by Defendant City at the subject premises in
the past ten years. Plaintiff also notes that Sablan was the project engineer
for the original waterproofing of the bicycle pathway and the subsequent
recoating of the ½ of the bike path.
Plaintiff argues that at Sablan’s
deposition, Deponent’s counsel instructed Sablan repeatedly to not answer
questions at his deposition that are not privileged nor invaded a privacy
interest. For example, Sablan was not allowed to answer who approved a final
draft of plans and specs for the waterproofing; she was instructed not to
answer if the area recoated was done to prevent bicycles from slipping, and she
was instructed not to answer if the area recoated was done to prevent
bicyclists from getting hurt. Plaintiff notes that deponent’s counsel then
suspended the deposition without further questioning. As such, Plaintiff has
brought this motion to compel five (5) unanswered questions from the
deposition.
Subsequently, Defendant, City of Redondo
Beach (“City”) filed a Motion for Protective Order Regarding the Deposition of
Sablan. Both motions are set for hearing
on the same date, which is when the CMC is also scheduled.
B. Procedural¿¿¿
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On February 23, 2024, Plaintiff filed his
motion to compel deponent to answer questions she was instructed not to answer.
On March 22, 2024, City filed an opposition brief. On March 26, 2024, Plaintiff
filed a reply brief. On April 5, 2024, this case was originally heard by
Honorable Judge Lynne M. Hobbes and the motion was continued until after the
parties had participated in an IDC. On April 29, 2024, this motion was
continued with an order for the parties to further meet and confer. On May 13,
2024, this motion was further continued. On June 26, 2024, this motion was
further continued to be heard today, July 24, 2024.
On March 27, 2024, City filed a Motion
for Protective Order. On April 11, 2024, Plaintiff filed an opposition brief. To
date, city has not filed a reply brief.
On May 3, 2024, Plaintiff filed an
omnibus sur reply in support of motion for an order compelling deponent, Lauren
Sablan, to answer questions she was instructed not to answer at deposition and
opposition to City’s protective order.
On June 10, 2024, the case was reassigned
from the PI hub to the Southwest District where the incident occurred, and
assigned to Inglewood Dept. 8 where Judge Frank presides.
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ANALYSIS¿¿
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A. Motion
to Compel Deponent to Answer Deposition Questions
Legal Standard
A party seeking
discovery may move the court for an order compelling a deponent 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, if the deponent fails to answer or produce
such information. (Code Civ. Proc., § 2025.480(a).) If a deponent fails
to answer any question or to produce any document, the party seeking discovery
may move the court for an order compelling that answer or production. (Code
Civ. Proc. § 2025.480(a).) If the court determines that the answer or
production sought is subject to discovery, it shall order that the answer be
given or the production be made on the resumption of the deposition. (CCP
§ 2025.480(i).) “This rule applies to subpoenas for production of
documents at a deposition and also to business records subpoenas ....”
(Weil & Brown, ¶ 8:609.1 [citing Code Civ. Proc, § 2025.480(b)].)
Discussion
Question 1
Question 1 at issue essentially asked Sablan: Who
approved the final draft submitted to the City Council? In City’s opposition
brief it argues that Sablan later answered that question. However, Plaintiff
clarifies that question 1 is still at issue because the “answers” identified by
Defendant were as to the initial draft report, not the final draft, as question
1 asked.
Plaintiff specifies that even if the answer to the
final draft was “yes” just like the initial draft report, Plaintiff’s follow-up
question would have been “whom” at the city approved the final draft. However,
Plaintiff argues that due to Defendant’s counsel’s objection, an answer was
never provided.
The Court AGREES that the objection by City’s
counsel should be overruled and the question of final approval is required to
be answered.
Question 2-5
Questions 2-5 essentially
asked Sablan: Whether the areas recoated with sand was to prevent bicycles from
slipping. In City’s opposition, City argues that Sablan answered the first
time. However, Plaintiff’s reply brief indicates that this question is still at
issue because none of the deposition testimony cited to by City answered the
question of whether the recoating was “to prevent bicyclists from slipping?”
The deposition
testimony included by Defendant City notes two distinct things: (1) first, that
the sand was added to add more traction around the bend; and (2) that it was
added for bicyclists. This Court also notes that in the attempts to get Sablan
to answer the exact question at issue in this case, Sablan also indicated that
she did not want to “speculate.”
The Court further
notes that between the constant objections as to this issue, and the confusion
of the witness, there may actually be a clearer answer. The Court finds that
this question is certainly relevant to be asked, and that the objections to “as
phrased” are unclear as to what part of the phrasing was problematic. Perhaps this point can be clarified by City’s
counsel at oral argument. Of course, if
the deponent truly does not know this exact answer and if her answer is that
answering said question would require her to speculate, then that scenario may
well be played out at the 2nd session of the deposition.
As such, the Court GRANTS Plaintiff’s motion
pursuant to the guidance provided above. Reasonable follow-up questions will also be
permitted after the witness answers the questions raised in this motion.
Sanctions
Here,
Plaintiff also seeks sanctions in the amount of $1,872.50. Pursuant to Code of
Civil procedure section 2025.450, subdivision (g)(1), if a motion is granted,
the court shall impose a monetary sanction…in favor of the party who noticed
the deposition and against the deponent or the party with whom the deponent is
affiliated, unless the court finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust.
Plaintiff’s
requested amount is based on Plaintiff’s counsel’s declaration noting that he
spent 1.25 hours drafting the motion, 0.5 hours drafting the separate
statement, 0.5 hours anticipated review of opposition and reply, and 0.25 hours
attending the hearing on this matter at a rate of $725/hour. Additionally,
Plaintiff’s counsel notes that he spent $60 on the filing fee. This Court notes
that although it finds the amount of time spent on the motion and supporting
papers to be reasonable, an hourly rate of $725 on a discovery motion is
unreasonable, especially without any explanation on why Plaintiff’s counsel commands
such a high hourly rate for this type of case. As such, if this Court is to
grant Plaintiff’s request for monetary sanctions, it would need an explanation
as to Plaintiff’s counsel’s hourly rate.
B.
Motion for Protective Order
Discussion
The City’s motion
looks nothing like a motion for protective order. In fact, the motion does not
even contain a protective order or indicate what discovery limitations the City
seeks for the Court to impose, other than denying Plaintiff’s motion. Instead,
the moving papers are almost identical to City’s opposition brief to
Plaintiff’s motion above. As noted above, the direct question as to whether the
sand was added to prevent bicyclists from slipping IS to be asked and answered.
As such, this motion along with the sanctions request is DENIED.
III. CONCLUSION
For
the foregoing reasons, the Court notes that Plaintiff’s Motions to Compel Deponent
to respond to the questions is GRANTED as to question 1 and as to the combined
question of questions 2-5. Monetary
Sanctions on behalf of Plaintiff are to be discussed during oral argument. Defendant City’ Motion for Protective Order
is DENIED along with City’s request for monetary sanctions.
Plaintiff
is ordered to provide notice.