Judge: Steven A. Ellis, Case: 21STCV43373, Date: 2024-02-26 Tentative Ruling
Case Number: 21STCV43373 Hearing Date: February 27, 2024 Dept: 29
Plaintiffs’ Motion to Compel Deposition of Defendant Postal
Delivery Systems, LLC
Plaintiffs’ Motion to Compel Deposition of Defendant
Thomas Garro
Tentative
The motions to compel
Defendants Postal Delivery and Garro to appear for deposition are granted.
The requests to compel
Defendants to produce documents described in the deposition notices are denied.
Both parties’ requests
for sanctions are denied.
Background
This case arises out of a motor vehicle
accident on December 15, 2019, near the intersection of Burbank Boulevard and
Hayvenhurst Avenue in Los Angeles. On
November 24, 2021, Plaintiffs Raul Perez, Miguel Perez, and Patricio Morales
(collectively “Plaintiffs’) filed the Complaint in this action asserting causes
of action for motor vehicle negligence and general negligence against Postal
Delivery Systems, LLC (“Postal Delivery”), Thomas Garro (“Garro”) and Does 1 through
50. Defendants Postal Delivery and Garro
filed their Answer to the Complaint on January 7, 2022.
On October 17, 2023, Plaintiffs noticed the
depositions of both Postal Delivery and Garro for October 30. (Allton Decls., ¶¶ 2-3 & Exh. A.) On October 27, Defendants served objections
to the deposition notices, but because the objections were not personally served,
they were not timely. (Id., ¶4
& Exh. B.) Defendants did not appear
for their depositions, and although Defendants offered alternative dates, no
agreement was reached. (Id., Exh.
C.; Grandy Decls., ¶¶ 5-6 & Exh. A.)
On November 13, 2023, Plaintiffs filed these
motions to compel the depositions of Defendant.
Plaintiffs also seek production of documents pursuant to the deposition
notice and monetary sanctions.
Defendants filed their oppositions, and their own requests for
sanctions, on February 13, 2024. Plaintiffs filed a combined reply on February
20.
The motion as to Defendant Garro was initially
noticed for February 27. The motion as
to Defendant Postal Delivery was initially noticed for February 26 and was
continued, on the Court’s own motion, to February 27.
Legal Standard
“Any party may obtain discovery … by taking in California the oral
deposition of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) Code of Civil Procedure sections 2025.210
through 2025.280 provide the requirements for (among other things) what must be
included in a deposition notice, when and where depositions may be taken, and
how and when the notice must be served.
“The service of a deposition notice … is effective to require any
deponent who is a party to the action or an officer, director, managing agent,
or employee of a party to attend and to testify, as well as to produce any
document, electronically stored information, or tangible thing for inspection
and copying.” (Id., § 2025.280,
subd. (a).)
Section 2025.230 provides: “If the deponent named is not a natural
person, the deposition notice shall describe with reasonable particularity the
matters on which examination is requested.
In that event, the deponent shall designate and produce at the
deposition those of its officers, directors, managing agents, employees, or
agents who are most qualified to testify on its behalf as to those matters to
the extent of any information known or reasonably available to the
deponent.”
Section 2025.410, subdivision (a), requires any party to serve a
written objection at least three days before the deposition if the party
contends that a deposition notice does not comply with the provisions of
sections 2025.210 through 2025.280. If
the objection is made three calendar days before the deposition, the objection
must be served personally. (Code Civ.
Proc., § 2025.410, subd. (b).) Failure
to serve a timely objection “waives any error or irregularity” in the
deposition notice. (Id., subd.
(a).)
“If, after service of a deposition notice, a party to the action
or an officer, director, managing agent, or employee of a party, or a person designated by an organization
that is a party under Section 2025.230, without having served a valid objection under Section 2025.410,
fails to appear for examination, or to proceed with it, or to produce
for¿inspection any document, electronically stored information, or tangible
thing described in the deposition notice, the party giving the notice may move
for an order compelling the deponent’s attendance and testimony, and the
production for inspection of any document, electronically stored information,
or tangible thing described in the deposition notice.” (Id., § 2025.450, subd. (a).)
Any such motion to compel must show good cause for the production
of documents and, when a deponent has failed to appear, the motion must be
accompanied “by a declaration stating that the petitioner has contacted the
deponent to inquire about the nonappearance.”
(Id., § 2025.450, subd. (b).)
“Implicit in the requirement that counsel contact the deponent to inquire
about the nonappearance is a requirement that counsel listen to the reasons
offered and make a good faith attempt to resolve the issue,” including by
rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86
Cal.App.4th 1109, 1124. See also
L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to
accommodating schedules in setting depositions).)
When a motion to compel is granted, “the court shall impose a
monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.” (Id., § 2025.450,
subd. (g)(1).)
In Chapter 7 of the Civil Discovery Act, section 2023.010,
subdivision (d), defines “[m]isuses of the discovery process” to include
“[f]ailing to respond to or to submit to an authorized method of
discovery.” Where a party or attorney
has engaged in misuse of the discovery process, the court may impose a monetary
sanction in the amount of “the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct.” (Id., § 2023.030, subd. (a).) “Any party served with a deposition notice that does not
comply with Article 2 (commencing with Section 2025.210) waives any error or
irregularity unless that party promptly serves a written objection specifying
that error or irregularity at least three calendar days prior to the date for
which the deposition is scheduled, on the party seeking to take the deposition
and any other attorney or party on whom the deposition notice was served.”
(Code Civ. Proc. § 2025.410(a).)
Discussion
On October 17, 2023, Plaintiffs served two
deposition notices by email.
First, Plaintiffs noticed the deposition of
Defendant Postal Delivery. The
deposition notice identified 16 examination topics and requested production of 55
categories of documents.
Second, Plaintiffs noticed the deposition of
Defendant Garro. The deposition noticed
requested production of the same 55 categories of documents.
On October 27, Defendants each served
objections to the deposition notices. Defendants
objected to the date of the depositions.
Defendants do not object to being deposed, but the parties have not been
able to agree on dates for the depositions, in large part because of the
dispute regarding the document requests in the deposition notices.
But as to the depositions themselves, there
is no dispute that Plaintiffs have a right to depose Postal Delivery and
Garro. Accordingly, the motion to compel
Postal Delivery and Garro to appear for their depositions and testify is
GRANTED.
The issue regarding the document requests
requires a more extended discussion.
Defendants objected, in writing, to each of
the 55 categories of documents requeted in each deposition notice. Because Defendants served their objections only
three days before the depositions, they were required to serve the objections
personally. (Code
Civ. Proc., § 2025.410, subd. (b).) But
they did not do so; instead they served their objections by email. This makes the objections untimely.
Under the plain language of the Civil
Discovery Act, failure to serve a timely objection to a deposition notice “waives
any error or irregularity” in the notice.
(Id., subd. (a).)
Accordingly, at the very least, Defendant Postal Delivery waived any
objections to the description of the examination topics. But the parties disagree on the scope of the
waiver (if any) as to the document demands contained in the deposition notice.
Scope of Waiver
The parties disagree regarding the scope of
the waiver under Code of Civil Procedure section 2025.410, subdivision
(a). Plaintiffs argue that all objections
are waived. Defendants argue that none
of their objections to the document requests are waived (or, alternatively, that
their attorney-client privilege and work product doctrine objections are not
waived).
(Alternatively, Defendants request relief from
waiver. Relief from waiver is
affirmative relief that must be sought through a noticed motion, not a request made
for the first time in an opposition to a motion to compel.)
The Court begins its analysis with an
examination of the statutory language. As
noted above, section 2025.410 states that the failure to timely object “waives
any error or irregularity” in the notice.
This is quite different from other waiver provisions in the same title
(that is, the Civil Discovery Act). For
example, the failure to serve a timely response to stand-alone demands for
production of documents under Code of Civil Procedure sections 2031.010, et
seq., “waives any objection to the demand, including one based on privilege or on
the protection for work product.” (Code Civ.
Proc., § 2031.300, subd. (a).) Similarly
broad waivers of all objections, including privilege and work product, appear elsewhere
in the Civil Discovery Act, including for the failure to serve timely responses
to interrogatories or requests for admission.
(Code Civ. Proc., §§ 2030.290, subd. (a) & 2033.280, subd. (a).) The Legislature’s use of more narrow language
in section 2025.410, as well as the absence of any specific reference to privilege
or work product, suggests that the Legislature intended a more narrow scope of
waiver in this section.
In addition, section 2025.460, subdivision
(a), states, “The protection of information from discovery on the ground that
it is privilege or that it is protected work product … is waived unless a
specific objection to its disclosure is timely made during the deposition.” This statutory provision directs that
privilege and work product objections are waived if not asserted at the
deposition, suggesting that such objections need not be made prior to the
deposition. (And the Legislature’s use
of the word “information” in this statute is broad enough to include both
testimony and documentary evidence.)
Based on the foregoing, the Court concludes
that Defendants’ failure to serve timely objections did not waive Defendants’
privilege and work product objections to the document requests. Objections to the form of the document
requests (such as that the requests are vague or ambiguous), however, are
waived. (See 2 Weil & Brown,
California Practice Guide: Civil Procedure Before Trial (2023) ¶ 8:509.)
Ruling on Defendants’ Objections
·
Requests Nos. 1-8,
13-17, 19-20, 23-24
Requests Nos. 1-8, 13-17, 19-20, and 23-24 seek
production of documents that relate to Plaintiffs and the accident, including Defendants’
“file,” documents that mention Plaintiffs, documents that refer to the
accident, photographs, witness statements, recorded statements, repair bills,
surveillance, recordings, insurance policies, and communications about the
incident.
Defendants assert a variety of objections to
these requests, including, primarily, that the requests intrude on matters
protected by the attorney-client privilege and/or the work product doctrine and
that the requests are overbroad, burdensome, and harassing.
As to Request No. 20, Defendants object on the
ground that the request seeks premature disclosure of expert witness materials. That objection is SUSTAINED. In response to this request, Defendants need
not produce expert opinion testimony or materials; such expert opinion
materials are subject to discovery through separate provisions of the Civil
Discovery Act.
All of Defendants’ other objections (to the
extent not waived) are OVERRULED. On a
motion to compel, the party objecting to discovery on the basis of the
attorney-client privilege, work product doctrine, or undue burden (and
therefore overly broad and harassing) has the initial burden of producing
admissible evidence to establish the foundational facts for the assertion of privilege,
work product, or undue burden. Defendants
have not done so here.
·
Requests Nos. 9-11,
21, 25, 27
Requests Nos. 9-11, 21, 25, and 27 seek the
documents identified in, or upon which Defendants based their responses to, form
interrogatories, special interrogatories, and requests for admission.
Defendants’ objections are OVERRULED.
·
Requests Nos. 12,
18,
Requests Nos. 12 and 18 seeks documents that
support Defendants’ contention that they were not negligent, that support
Defendants’ affirmative defenses.
Defendants’ objection regarding premature
disclosure of expert witness materials is SUSTAINED. In response to this request, Defendants need
not produce expert opinion testimony or materials; such expert opinion
materials are subject to discovery through separate provisions of the Civil
Discovery Act.
Defendants’ other objections are OVERRULED.
·
Requests No. 22,
26, 28
Request Nos. 22, 26, 28 seek the production of
“all communications with any person related to your responses” to the requests
for admission, special interrogatories, and form interrogatories.
The Court DENIES the request to compel
production of the documents responsive to these requests on the ground that the
notice does not contain a “specification with reasonable particularity [the] category
of materials … to be produced by the deponent.”
(Code Civ. Proc., § 2025.220, subd. (a)(4).) Indeed, it is unclear to the Court what
materials these requests seek, and the Court cannot grant a motion to compel a
response to a discovery request that the Court itself does not understand.
·
Requests Nos.
29-30
Request Nos. 29 and 30 seek documents and
communications regarding prior accidents (from January 1, 2015 to the day of
the accident) involving the vehicle driven by Garro on the day of the accident.
Defendants’ objections are OVERRULED.
·
Requests Nos. 31-38
Request Nos. 31-38 seek documents regarding maintenance
and repairs (from January 1, 2015 to the day of the accident) of the vehicle
driven by Garro on the day of the accident.
Defendants’ objections are OVERRULED.
·
Requests Nos. 39,
41-43
Requests Nos. 39 and 41 seeks communication with
Dr. Michael Weinstein related to the incident and documents related to “any
expert opinion Dr. Michael Weinstein has … as per your expert designation
served on October 10, 2023.” Requests
Nos. 42 and 43 seek the same information regarding designated expert witness
Isaac Ikram.
Defendants’ objections are SUSTAINED.
·
Request No. 40
Request No 40 seeks cell phone records of any
cell phone in the vehicle for the time period of one hour prior to the accident
to two hours after the accident.
Defendants’ objections are OVERRULED.
·
Request Nos. 44-45
Requests Nos. 44-45 seek documents regarding
Garro’s work with Postal Delivery on the day of the accident.
Defendants’ objections are OVERRULED.
·
Request Nos.
46-47
Request Nos. 46-47 seek documents regarding
the Event Data Recorder in the vehicle on the day of the accident.
Defendants’ objections are OVERRULED.
·
Request Nos.
49-55
Requests Nos. 49-55 seek documents, described
in various ways, that Defendants “intend to use as evidence at trial.”
Defendants’ work product objection is
SUSTAINED. These requests, on their
face, directly request materials protected by the work product doctrine; in
contrast to the other requests as to which Defendants asserted a work product
doctrine, here no further factual showing – beyond the requests themselves – is
necessary for the Court to determine that the responsive materials to this
request (as framed) are protected.
Good Cause
A motion to compel production of documents in
a deposition notice “shall set forth specific facts showing good cause
justifying the production for inspection of any document, electronically stored
information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subdivision
(b)(1).) The good cause standard is generally
construed liberally and is not viewed as a high standard. (Associated Brewers Dist. Co. v. Super.
Ct. (1967) 65 Cal.2d 583, 587-588; Glenfed Development Corp. v. Super.
Ct. (1997) 53 Cal.App.4th 1113, 1117; 2 Weil & Brown, supra, ¶
8:801.3.)
The good cause standard, although liberally
construed, is still a standard. The
party bringing a motion to compel must show good cause for production of the
documents, but here Plaintiffs’ papers are entirely silent on this point. Accordingly, Plaintiffs have not met their
(admitted low) burden of showing good cause for the production of documents.
As a result, the Court DENIES Plaintiffs’
motion to compel Defendants to produce the documents requested in the
deposition notices.
Sanctions
Both parties’ requests for sanctions are DENIED.
The Court denies Defendants’ requests for
sanctions as the Court is granting the motion to compel the depositions and the
Court finds that Plaintiffs’ conduct in relation to the document requests is
substantially justified.
The Court denies Plaintiffs’ requests for
sanctions as the Court is denying the motion as it relates to the documents and
the Court finds that Defendants’ conduct is substantially justified.
Conclusion
The Court GRANTS
Plaintiff’s motions to compel Defendants Postal Delivery and Garro to appear
for deposition.
The Court ORDERS
Defendant Postal Delivery to appear for the deposition on a date to be determined
by counsel within 21 days of notice, through one or more properly designated persons
most qualified on each of the topics set forth in the deposition notice served
on October 17, 2023.
The Court ORDERS
Defendant Garro to appear for the deposition on a date to be determined by
counsel within 21 days of notice.
The Court DENIES
Plaintiff’s request to compel Defendants to produce the documents described in
the deposition notices served on October 17, 2023.
The Court DENIES
both parties’ requests for sanctions.
Moving
parties are ORDERED to give notice.