Judge: William A. Crowfoot, Case: 20STCV22293, Date: 2022-07-27 Tentative Ruling

Case Number: 20STCV22293    Hearing Date: July 27, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On June 12, 2020, plaintiff Emma Galstyan (“Plaintiff”) filed this action against defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”), asserting two general negligence causes of action.

The Complaint alleges the following. On or about June 6, 2019, Plaintiff was a passenger on Defendant’s bus. Plaintiff was sitting immediately behind the bus driver when two passengers started verbal altercations and physically fighting with another passenger. The bus driver did not stop the bus but continued driving it. Plaintiff attempted to move out of the way of the passengers fighting and exit the bus, but one or more of the passengers fighting fell on her, causing her to sustain severe and permanent injuries.

On July 1, 2022, Defendant filed the instant motion to compel the deposition of Plaintiff's husband (a nonparty) under Code of Civil Procedure sections 2025.010 and 2025.450.

On July 13, 2022, Plaintiff filed her opposition to the motion.

On July 15, 2022, Defendant filed its reply.

II.        LEGAL STANDARD

“Unless otherwise limited by order of the court …, 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.” (Code Civ. Proc., § 2017.010.)

“[D]iscovery from a nonparty may be obtained only by ‘deposition subpoena’ (§ 2020.010, subd. (b)).” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130, italics removed.)

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

A party desiring to take an oral deposition shall give a notice in writing which states the specification of reasonably particularly of any materials to be produced by the deponent. (Code Civ. Proc., § 2025.220, subd. (a)(4).) A properly served deposition notice is effective in requiring a party to attend and testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the scheduled deposition date. (Code Civ. Proc., § 2025.410, subd. (a).)

“If, after service of a deposition notice, a party to the action … without having served a valid objection … fails to appear for examination, … or to produce for inspection any document, … 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 … described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).) 

A motion brought to compel a deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

III.      DISCUSSION

          Defendant moves to compel the deposition of Plaintiff’s husband, Samvel Galstyan, a nonparty.

1. Meet and Confer

The Court finds that Defendant has produced a sufficient meet and confer declaration. (Motion, Nebenzahl Decl., ¶ 17; Exhibit 7.)

1. Analysis

The main argument in Defendant’s motion is that the Court should compel Plaintiff’s husband to appear at his deposition because the parties had agreed that Defendant could depose the husband. Defendant states that before discovery was cut off, the parties had several pre-trial discovery issues pending, including Defendant’s desire to depose Plaintiff’s husband. (Motion, p. 3:18-20.) Even though Plaintiff’s husband is a nonparty, Plaintiff’s counsel informed Defendant that a subpoena was not required as counsel would treat the husband as an extension of the representation of Plaintiff. (Motion, p. 3:22-24; Nebenzahl Decl., ¶ 3.) The agreement that Defendant could depose Plaintiff’s husband was documented in a series of notices, emails, and in Plaintiff’s Ex Parte Application filed on May 13, 2022. (Motion, p. 4:1-23; Nebenzahl Decl., ¶¶ 13-19.)

In opposition, Plaintiff argues the following.

First, Defendant’s reliance on Plaintiff’s agreement to produce Plaintiff’s husband is misplaced because the agreement was based on the stipulation the parties' counsels executed and which defense counsel subsequently withdrew. (Opposition, p. 8:10-12.)

Second, in accordance with the Court’s ruling on May 16, 2022, concerning Plaintiff’s ex parte application, Defendant is barred from bringing the instant motion because discovery and all related dates are now closed. (Opposition, p. 3:16-17; Shaghzo Decl., ¶ 6.) In fact, Defendant objected to extending any discovery-related cutoff dates beyond the prior trial date set on May 31, 2022. (Opposition, p. 7:22-25; Shaghzo Decl., ¶ 9.) Therefore, after Defendant served a Third Amended Notice of Deposition of Witness Samvel Galstyan, setting the deposition for June 8, 2022, Plaintiff timely served an objection to the notice. (Opposition, p. 3:22-25; Shaghzo Decl., ¶¶ 11-12; Exhibits C and D.)

Third, Defendant has failed to file the requisite motion to extend discovery cut-off dates under Code of Civil Procedure section 2024.050. However, even if Defendant filed such a motion, the motion would fail to establish good cause because Plaintiff’s husband is not a percipient witness as he was not present when the incident occurred. Therefore, any information he would possess about the incident would flow from privileged marital communications.

In reply, Defendant does not address Plaintiff’s arguments concerning the cutoff date and Defendant’s objections to continuing discovery and related deadlines. (Evid. Code, § 452, subd. (d)(1) [providing that a court may take judicial notice of court records of this state]; Minute Order dated May 13, 2022, p. 1 (emphasis added) [“Plaintiff represents that Defendant no longer stipulates to continuing discovery/related deadlines as currently stated in the Ex-Parte moving papers. Additionally, Plaintiff notes that they wish to withdraw today's Ex-Parte Application in order to refile for Monday”].)

Instead, Defendant argues the following, among other things. First, Plaintiff has filed a motion asking this Court to open discovery and extend all cut-offs. (Reply, p. 3:19-21.) The hearing for that motion is scheduled for August 8, 2022. (Reply, p. 3:17-18.) Second, there is good cause to depose Plaintiff’s husband because the husband would have information about his wife’s health, including her past and present conditions. (Reply, p. 3:7-11.) Third, the marital or spousal privilege would not apply in this instance where Defendant is seeking the husband’s knowledge of Plaintiff’s care, treatment, observations, complaints, abilities, and inabilities. (Reply, p. 3:13-15.)

 “[A]ny party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).)

Here, Defendant does not dispute that the prior trial date was scheduled for May 31, 2022, and that the cutoff date for discovery motions, including this one, was May 16, 2022.

Accordingly, to the extent that Defendant wants to reopen discovery, Defendant should file a motion under Code of Civil Procedure section 2024.050 for leave to complete discovery proceedings.

However, the Court finds that even if it considered Defendant’s motion on its merits, the Court would be reluctant to compel the deposition of Plaintiff’s husband in the absence of a subpoena.

“In California, discovery may be obtained from a nonparty through an oral deposition, a written deposition, or a deposition for the production of business records and things. (Code Civ. Proc., § 2020.010, subd. (a).) To pursue the deposition of a nonparty, a party must generally serve a deposition subpoena. (Id., § 2020.010, subd. (b).)” (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1030.)

“Generally, a party may require the deposition of a nonparty only if the party serves the deponent with a deposition subpoena. (§ 2025.280, subd. (b).) Thus, a deposition notice served on the opposing party is inadequate to compel a third party’s attendance. (Ibid.) However, a subpoena is not required if the deponent is ‘an officer, director, managing agent, or employee of a party.’ (§ 2025.280, subd. (a).) The discovery statutes refer to this deponent as a ‘party-affiliated deponent.’ (§ 2025.450, subd. (h).) The requisite ‘party-affiliated’ relationship must exist at the time of the deposition notice. [Citation.]” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 600.)

“Discovery procedures are generally less onerous for strangers to the litigation. That is because they are less likely to be represented by counsel, familiar with the issues, or able to react with alacrity before responses are due. Why ask more of them than of represented parties? ... ‘While all discovery devices are available against a party, only deposition subpoenas can be directed to a nonparty.... [¶] The distinction between parties and nonparties reflects the notion that, by engaging in litigation, the parties should be subject to the full panoply of discovery devices, while nonparty witnesses should be somewhat protected from the burdensome demands of litigation.’ ...’ [Citation]” (Unzipped Apparel, LLC v. Bader, supra, 156 Cal.App.4th at p. 133 [emphasis in original].)

Here, Plaintiff’s husband would not be considered a party-affiliated deponent. Therefore, a subpoena would be required for the Court to compel his attendance at a deposition unless the parties can point to authority holding otherwise.

          For the reasons set forth above, the Court denies the motion.

IV.      CONCLUSION

          The Motion to Compel the Deposition of Plaintiff’s Husband is DENIED.

          Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.