Judge: Walter P. Schwarm, Case: 30-2021-01185153, Date: 2022-10-18 Tentative Ruling

Moving Parties (The Scion Group LLC and University House Fullerton) Motion to Compel Plaintiff Brandon Kepley to Further Answer to Deposition (Motion), filed on 7-13-22 under ROA No. 122, is GRANTED in part and DENIED in part.

Code of Civil Procedure section 2025.480(a) states, “(a) 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 of Civil Procedure section 2017.010 provides, “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.”

The Motion seeks to compel Plaintiff to answer three questions posed to Plaintiff at Plaintiff’s deposition.  The Motion identifies the questions as Deposition Question—58:4-5 (Question No. 1), Deposition Question—62:2-3 (Question No. 2), and Deposition Question—230:11-15 (Question No. 3).

The Motion states, “This case involves a physical altercation between plaintiff and several unidentified individuals that took place in an apartment complex. As part of its defenses, Moving Defendants, among other things, is seeking to establish the comparative fault of plaintiff. If Plaintiff was intoxicated or under the influence of narcotics at the time of the altercation, then Moving Defendants are entitled to conduct discovery on plaintiff’s use of alcohol and/or drugs in an effort to establish admissible evidence to support a finding of comparative fault. [¶] Here, plaintiff admitted during deposition testimony that: (1) he was underaged at the time of the incident; and (2) that he had been drinking. Choi Decl. Ex. B. Additionally, there is evidence (plaintiff’s medical records) that show his blood alcohol levels, measured several hours after the incident, were well above the legal limit.” (Motion; 5:15-24; Italics in Motion.)

Plaintiff’s Opposition to Defendants Motion to Compel Further Responses to Deposition Questions (Opposition), filed on 8-25-22 under ROA No. 143, responds, “The issue the undersigned had regarding the deposition question . . . is that the question was so over broad that it was objectionable . . . Just rephrase it and put some time and scope limits on it and it would have been answered . . . .” (Opposition; 5:19-25; (Emphasis and underscore in Opposition.)

People v. Wilson (2008) 44 Cal.4th 758, 794 (Wilson), states, “The trial court's treatment of this issue was correct and did not violate defendant's constitutional rights. There was no evidence Michael Durbin had ingested any drugs on the day of the crimes, and neither counsel suggested they had evidence he was an habitual user. Moreover, even if he was, neither defense counsel accepted the trial court's suggestion to call an expert to lay a foundation regarding the effect of habitual methamphetamine use on one's ability to perceive and recall events. ‘Evidence of habitual narcotics . . . use is not admissible to impeach perception or memory unless there is expert testimony on the probable effect of such use on those faculties.’ [Citations.] Defendant does not persuasively explain how this long-standing evidentiary rule undermined his ability to effectively cross-examine Michael Durbin or L.R.”

As to Question Nos. 1 and 2, Plaintiff’s use of alcohol is relevant under Code of Civil Procedure section 2017.010.  Question Nos. 1 and 2, however, are overbroad in terms of time.  Limiting the scope of Questions Nos. 1 and 2 to one-year before the incident will allow Defendants to further develop evidence regarding Plaintiff’s tolerance for alcohol. Therefore, the court GRANTS the Motion as to Question Nos. 1 and 2.

As to Question No. 3, Plaintiff answered Question No. 3.  Therefore, the court DENIES the Motion as to Question No. 3.

Based on the above, the court GRANTS Moving Parties’ (The Scion Group LLC and University House Fullerton) Motion to Compel Plaintiff Brandon Kepley to Further Answer to Deposition, filed on 7-13-22 under ROA No. 122, as to Question Nos. 1 and 2.  The court DENIES the Motion as to Question No. 3.  The court ORDERS Plaintiff to appear for further deposition to answer Question Nos. 1 and 2, as limited in scope as discussed above, at a date, time, and locations agreed upon by the parties.  The court DENIES Moving Parties’ and Plaintiff’s request for a monetary sanction because Moving Parties were substantially justified in bringing the Motion and Plaintiff was substantially justified in opposing the Motion. (Code Civ. Proc.., § 2025.480, subd. (j).)

Defendants are to give notice.