Judge: William A. Crowfoot, Case: 21STCV19801, Date: 2022-08-29 Tentative Ruling

Case Number: 21STCV19801    Hearing Date: August 29, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On May 25, 2021, Plaintiff Tyreece Jefferson commenced this action against Defendant Marquis Taylor for negligence arising from a motor vehicle accident.

          On April 14, 2022, Plaintiff substituted Doe 1 for Defendant Ethan Duran.

          On June 6, 2022, Plaintiff substituted Doe 2 for Corsa Auto Rental Inc.

          On July 11, 2022, Plaintiff filed an ex parte motion to compel the deposition of Defendant Taylor. The ex parte motion was denied, but the Court set the motion for hearing on August 29, 2022.

          On August 8, 2022, Defendant filed a motion for protective order and sanctions. An ex parte motion to advance the hearing was granted on August 10, 2022.

          At issue are the motions to compel deposition and motion for protective order.

II.      LEGAL STANDARDS

Compel Second Deposition

CCP § 2025.610 provides, as follows:  

(a)¿Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.

(b)¿Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.

(c)¿This section does not preclude taking one subsequent deposition of a natural person who has previously been examined under either or both of the following circumstances:

(1)¿The person was examined as a result of that person’s designation to testify on behalf of an organization under Section 2025.230.

(2)¿The person was examined pursuant to a court order under Section 485.230, for the limited purpose of discovering pursuant to Section 485.230 the identity, location, and value of property in which the deponent has an interest.

(d)¿This section does not authorize the taking of more than one subsequent deposition for the limited purpose of Section 485.230.

Protective Order

Protective orders may be granted on motion of the deponent or any party, or any third person who could be affected by the disclosure (e.g., a nonparty whose privacy would be impaired).  (CCP § 2025.420(a).)   A formal noticed motion and hearing are always required.  A protective order cannot be granted ex parte.  (St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82, 85-86.)  The motion must be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve the matter outside of court.  (CCP § 2025.420(a).) 

The burden is on the moving party to establish “good cause” for whatever relief is requested.  Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in the discovery procedure clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.  (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.)  Such a showing is not necessary, however, where the moving party is “presumptively entitled to a protective order” – i.e., where a defendant is asked questions regarding his or her net worth in an action for punitive damages.  (Weil & Brown, Civil Procedure Before Trial, at 8:691.)

The court “shall” impose monetary sanctions against whichever party loses on the motion for protective order unless it finds that party acted “with substantial justification” or other circumstances render sanctions “unjust.”  (CCP § 2025.420(d).)  Section 2025.420(d) applies “to any person,” whether a party or not, who moves unsuccessfully for a protective order.  Thus, a nonparty who is denied a protective order is subject to sanctions.  (Brun v. Bailey (1994) 27 Cal.App.4th 641, 658-659.)

III.     DISCUSSION

Compel Deposition

Plaintiff requests the Court to compel the deposition of Defendant Marquis Taylor. Plaintiff makes this request under CCP § 2025.450(a). It appears, however, from both the motion and opposition that Taylor has already been deposed. Accordingly, the proper statute is CCP § 2025.610 requiring Plaintiff to show good cause.

Plaintiff states that Defendant’s deposition was improperly terminated by defense counsel but does not explain how. Plaintiff also states that in the short amount of time Plaintiff was able to obtain Defendant’s testimony, new facts were unveiled that create a genuine dispute as to the authenticity of a lease agreement that will influence the issue of ultimate liability in this case. The subject lease agreement that is an essential factor of this litigation is allegedly a forged document. Plaintiff had no reason to dispute the authenticity of said agreement before questioning Defendant at his deposition. Thus, Plaintiff has amended the complaint to designate two additional Defendants and will be moving this Court to amend the Complaint to allege a cause of action for Fraud. The Court also notes that the previous application for a subsequent deposition was deemed moot because defense counsel represented that he would voluntarily produce Defendant for deposition Volume II. (Daneshrad Decl., ¶13.)

Defendant opposes but nothing in the opposition disputes that there is good cause to take a subsequent deposition based on the above allegations. Defendant also concedes that the previous deposition was terminated in order for defense counsel to obtain a protective order. (Opp., 6:4-7.)

Accordingly, it appears the first deposition was likely terminated early, and further there are now newly discovered facts and issues of liability. Accordingly, the Court finds good cause for the subsequent deposition of Defendant Taylor.

Protective Order

Defendant Taylor requests a protective order to prohibit Plaintiff*s attorney from inquiring about attorney-client communications and to prohibit Plaintiff's attorney from lecturing the Defendant about the law and his theory of the case under the pretext of conducting a deposition. Defendant also requests monetary sanctions in the amount of $6,495 against Plaintiff and counsels of record for engaging in abuse of discovery.

Plaintiff has not opposed other than a short opposition in the opposition to the ex parte motion. In the ex parte opposition, Plaintiff argues that there is no good cause for the protective order because Defendant fails to state a single example from the deposition transcript to illustrate how a protective order would be beneficial to Defendant.

While Plaintiff’s counsel should not “lecture” Defendant about the law, it is unclear to the Court why a protective order was sought for these matters as they may be objected to at the deposition and counsel may instruct Defendant not to answer, especially concerning attorney-client privileged matters. If Plaintiff finds the objections without merit, Plaintiff may move the Court for an order compelling the answers. From the deposition transcript, it does not appear that Plaintiff’s counsel was persisting to the point of terminating the deposition. (Plummer Decl., ¶4, Exh. 3.)

Accordingly, the Court does not find good cause for the protective order and sanctions are unwarranted as the motion is denied and Plaintiff has not requested sanctions in opposition.

IV.     CONCLUSION

Plaintiff’s motion to compel the subsequent deposition of Defendant Taylor is GRANTED.  Defendant Taylor will appear for a deposition not more than 30 days from the date of this order.

Defendant’s motion for protective order and sanctions 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 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.