Case Number: BC658862 Hearing Date: May 22, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO COMPEL PLAINTIFF’S ANSWERS TO DEPOSITION QUESTIONS; MOTION GRANTED

On April 21, 2017, Plaintiff Carole Grosser (“Plaintiff”) filed this action against Defendants City of Azusa (“Azusa”), City of Glendora (“Glendora”), City of Irwindale (“Irwindale”), County of Los Angeles (“County”), Miguel Castaneda, and Zulma Castaneda (collectively, “the Castanedas”) for dangerous condition of public property and vicarious liability for the wrongful acts of public employees.

On January 29, 2018, Plaintiff was deposed and answered preliminary questions. However, the Castanedas’ counsel brought photographs, apparently taken from Google maps, which she intended to show to and question Plaintiff. These photographs were not previously provided to Plaintiff, and Plaintiff’s counsel requested a break so that she could review them with Plaintiff, before answering Defendant’s questions. Defendant’s counsel refused to allow Plaintiff to review the photographs with counsel before answering questions regarding them.

On April 20, 2018, the parties participated in an Informal Discovery Conference (“IDC”) with the Court, but the issues were not resolved. The Castanedas now seek to compel Plaintiff’s responses. Defendants/Cross-Defendants Jerry Metz, Nancy Metz, and City of Azusa filed joinders in the Castanedas’ Motion to compel Plaintiff’s responses.

“If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer or production.” (Code of Civ. Proc., § 2025.480, subd. (a).) At a deposition, it is generally improper for counsel to instruct a deponent not to answer a question unless it pertains to privileged matters, or deposing counsel’s conduct has reached a stage where suspension is warranted. (Stewart v. Colonial Western Agency, Inc. (2001) 97 Cal.App.4th 1006, 1015.) “The fact that suspension is available only where an interrogation into improper matters reveals an underlying purpose to harass, annoy, etc., indicates that witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process.” (Ibid.)

“Counsel defending a deposition should limit objections to those that are well founded and necessary for the protection of a client’s interest. Counsel should bear in mind that most objections are preserved and need be interposed only when the form of a question is defective or privileged information is sought.” (Los Angeles Sup. Ct., Local Rules, 3.A(e)(7).) “While a question is pending, counsel should not, through objections or otherwise, coach the deponent or suggest answers” (Los Angeles Sup. Ct., Local Rules, 3.A(e)(8)), and “Counsel should not direct a deponent to refuse to answer questions unless they seek privileged information nor are manifestly irrelevant or calculated to harass” (Los Angeles Sup. Ct., Local Rules, 3.A(e)(9)).

Plaintiff argues that fundamental fairness requires that she be allowed to review the photographs (Exhibits A-J) before being questioned regarding them. Plaintiff also argues she was entitled to take breaks during the deposition, and she should have been permitted to take a break to review the photographs. However, the cases Plaintiff relies on were superseded, decided before the amendments to the Discovery Act, and are distinguishable. Greyhound v. Superior Court (Clay) (1961) 56 Cal.2d 355 was superseded by statute and involved the production of photographs and witness statements that were objected to as work product. In Filipoff v. Superior Court of Los Angeles County (1961) 56 Cal.2d 443, the deponent did not outright refuse to answer questions, but stated he could answer more fully if he could refresh his recollection by reviewing certain documents and notes. While they acknowledge that the Discovery Act was entitled to take the “game” out of litigation, nothing in these cases states a deponent must be allowed to review photographs or documents prior to being deposed on them.

Defendants argue they were not witnesses to Plaintiff’s trip and fall, and that the only way to ascertain where it occurred and other circumstances is to depose Plaintiff and for her to testify to photographs of the scene.

The Motion to compel Plaintiff’s answers at deposition regarding Exhibits A-J is GRANTED. Plaintiff is ordered to appear to complete her deposition and to answer questions regarding the photographs of the scene.

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds the one subject to sanctions acted with substantial justification or that imposition of a sanction would be unjust. (Code of Civ. Proc., § 2025.480, subd. (j).)

The Courts finds that there was no substantial justification to oppose this motion and sanctions will be awarded. Monetary sanctions are imposed against Plaintiff and her counsel of record, jointly and severally, in the amount of $347.50 for two hours preparing this Motion and attending the hearing, at defense counsel’s rate of $143.75 per hour, and the $60.00 filing fee. The monetary sanction is ordered to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.