Case Number: BC625200 Hearing Date: March 09, 2018 Dept: J

Re: Joseph Munoz v. Jiang Pinchao, et al. (BC625200)

MOTION TO COMPEL FURTHER TESTIMONY AT DEPOSITION

Moving Party: Defendant Pinchao Jiang’s (erroneously sued as Jiang Pinchao)

Respondent: No timely opposition filed (due 2/26/18)

POS: Moving OK

Plaintiff is a current tenant of the residential premises located at 11106 Oak Street in El Monte (“subject property”). Plaintiff complains of numerous habitability issues. The complaint was filed on 6/28/16. On 9/26/16, this action was transferred from the personal injury hub (Department 91) to this courtroom. The First Amended Complaint, filed 1/19/17, asserts causes of action against Defendants Jiang Pinchao, Tina Del Cueto and DOES 1-50 for:

Breach of Implied Warranty of Habitability;

Negligence

Constructive Eviction

Nuisance

Intentional Infliction of Emotional Distress

The Final Status Conference is set for 3/16/18. A jury trial is set for 3/27/18.

Defendant Pinchao Jiang (erroneously sued as Jiang Pinchao) (“defendant”) moves, per CCP § 2025.480(a), for an order compelling Plaintiff Joseph Munoz (“plaintiff”) to provide further testimony in deposition. Defendant contends that plaintiff failed, without justification, to answer any question at his prior deposition concerning his cleaning habits and maintenance of his room and bathroom, which line of questioning is relevant and reasonably calculated to lead to the discovery of admissible evidence. Defendant also seeks sanctions against plaintiff and his counsel in the amount of $1,935.00.

CALIFORNIA RULES OF COURT RULE 3.1345 NON-COMPLIANCE:

“Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:…(4) To compel answers at a deposition.” The motion is not accompanied by a CRC Rule 3.1345 separate statement.

CCP § 2025.480(h) NON-COMPLIANCE:

“Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion.” CCP § 2025.480(h). Defendant has not lodged a certified copy of the relevant portions of plaintiff’s deposition transcript as of 3/1/18.

Additionally, the motion appears to be untimely. “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.” CCP § 2025.480(a). “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP § 2025.480(b).

Plaintiff’s deposition was held on 8/18/17. Again, the motion to compel must be made within 60 days after the completion of the deposition. “It is unclear whether the deposition record is ‘completed’ when the reporter sends notice that the transcript is available for review or only after the expiration of time to sign or correct the transcript.” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 8:801 (emphasis omitted). Regardless, the motion was filed on 2/14/18, nearly 6 months after plaintiff’s 8/18/17 deposition. Plaintiff has not provided the court with any evidence showing that the motion was filed within 60 days after the deposition was completed. Although it appears that the parties contemplated a second session for plaintiff’s deposition, defendant’s counsel Michelle Villarreal (“Villarreal”) advised in her 11/16/17 correspondence to plaintiff’s counsel that a second session would be postponed “until a motion to compel his testimony is heard and ruled upon by the court.” (Villarreal Decl., ¶ 7, Exhibit “C”). Even if it were assumed that the deposition was not deemed completed until the date of this letter, the motion was filed nearly three months later. There is also no indication from the attached exhibits that opposing counsel stipulated to extend the time to file the motion.

Accordingly, the motion is denied.