Judge Thomas D. Long, Case Number: 22STCV34888, Date: 2024-05-02 Tentative Ruling

On November 2, 2022, Plaintiff Daniel Husband filed this action against Defendant Target Corporation and others.

On January 8, 2024, Plaintiff took the deposition of witness Nadine Wishart. (Morgan Decl. ¶ 8.) According to Plaintiff’s counsel, “defense counsel improperly made speaking objections and instructed Ms. Wishart not to answer relevant questions relating to Plaintiff’s claims.” (Morgan Decl. ¶ 8.)

On April 11, 2024, Plaintiff filed a motion to compel Wishart’s further deposition testimony and for appointment of a discovery referee.

A motion to compel further deposition testimony must be made within 60 days of the completion of the record. (Code Civ. Proc., § 2025.480, subd. (b).) The record was complete on February 26, 2024, making this April 11, 2024 motion timely. (Morgan Decl. ¶ 9 & Ex. F.)

A motion to compel further deposition testimony must include a meet and confer declaration. (Code Civ. Proc., § 2025.480, subd. (b).) Defendant argues that Plaintiff failed to satisfy the requirement to meet and confer. (Opposition at pp. 7-8.)

Plaintiff never requested, or met and conferred, regarding the need for a discovery referee. (Al-Chalati-Moeller Decl. ¶ 12.) Plaintiff also never requested a second day of deposition and never noticed a further deposition. (Al-Chalati-Moeller Decl. ¶ 13.)

On April 12, 2024, Plaintiff’s counsel asked defense counsel for a further deposition and a discovery referee. (Al-Chalati-Moeller Decl. ¶ 14 & Ex. G.) On April 16, 2024, Defendant’s counsel offered to produce Wishart for three more hours of deposition if Plaintiff withdrew the motion, but Plaintiff did not respond before Defendant filed its opposition. (Al-Chalati-Moeller Decl. ¶ 15 & Ex. H.)

On April 22, 2023, Plaintiff responded to Defendant “expressly outlining the need for a discovery referee in light of Defendant’s conduct.” (Morgan Reply Decl. ¶ 12 & Ex. J.) Defendant responded the night before Plaintiff’s reply brief was due, but Plaintiff’s counsel does not state what that response was. (Morgan Reply Decl. ¶ 13.)

These efforts are not “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

Plaintiff argues that the meet and confer efforts were sufficient because “Plaintiff, by and through his counsel, met and conferred extensively on the record on January 8th as to Defendant’s egregious and improper deposition conduct.” (Reply at p. 4.) “A reasonable and good faith attempt at informal resolution entails something more than bickering with deponent’s counsel at a deposition. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439.)

Despite Plaintiff’s failure to meet and confer before filing this motion, the Court will address the merits.

Plaintiff requests that the Court appoint a discovery referee at Defendant’s expense “due to Defendant and its counsel’s continual misuse and abuse of the discovery process.” (Motion at pp. 10-11.) Plaintiff argues that defense counsel coached and testified for the witness, instructed the witness to not answer, improperly reframed questions, asked the witness to seek clarification, and obstructed exhibits. (Motion at pp. 6-10.) Plaintiff provides excerpts from the deposition. (Morgan Decl., Ex. E [“Wishart Depo.”].)

Plaintiff has not shown abusive conduct that requires the appointment of a discovery referee. For example, defense counsel objected to a question as being unintelligible and calling for speculation, and then the witness answered, “I don’t understand your question.” (Motion at pp. 8-9; Wishart Depo. at p. 31.) Plaintiff’s counsel asked, “Is there a word that you don’t understand in the question?” and defense counsel added, “Counsel, don’t argue with the witness. She has stated she doesn’t understand. It’s now your job to clean up your question, please.” Although the second defense interjection was unnecessary in light of Plaintiff’s counsel’s question about the witness’s understanding, it is not obstructive or abusive. The objections identified at pages 200 and 201 are for clarity of the question and are not improper coaching of the witness. (Motion at pp. 1-2; see Motion at pp. 6-7.) Defense counsel correctly objected that some matters were asked and answered. (Motion at pp. 7-8; Wishart Depo. at pp. 227-228.) With respect to Deposition Exhibit 12, defense counsel objected because it was unintelligible. (Wishart Depo. at pp. 256-257.) Defendant provides a copy of the exhibit, and the Court agrees that it is unintelligible. (Al-Chalati-Moeller Decl., Ex. C.) Defense counsel’s objection was not obstructive or abusive.

After the objections to Deposition Exhibit 12, Plaintiff’s counsel terminated the deposition at 5:12 p.m. due to “abusive conduct.” (Wishart Depo. at p. 259.) At this time, over seven hours of testimony had already been taken. (Opposition at p. 7.) The Court disagrees that Defendant’s conduct was abusive, and Plaintiff voluntarily ended the deposition.

Plaintiff never requested a second day of deposition and never noticed a further deposition. (Al-Chalati-Moeller Decl. ¶ 13.) Accordingly, there is currently nothing to compel.

In reply, Plaintiff argues that Defendant’s April 9, 2024 document production is grounds for further deposition testimony from Wishart. (Reply at pp. 6-7.) That is outside the scope of the motion.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court