2016-00204838-CU-CL

Alhambra Enterprises, Inc. vs. Hector Martinez

Nature of Proceeding: Motion to Compel Further Deposition Testimony and Production of

Filed By: Finnerty, Kathleen E.

The motion of plaintiff Alhambra Enterprises, Inc. for an order compelling defendant Hector Martinez (“Defendant”) to provide further deposition testimony and further

document production pursuant to Code of Civil Procedure section 2025.450 as to RPD Nos. 1-2, 3a, 3b, 4-10, 11a, 11b, 12-17 is granted.

Plaintiff moves upon the grounds that Defendant did not testify for seven hours as

provided in Code of Civil Procedure section 2025.290, and he failed to produce all responsive documents in his possession, custody, or control in response to the concurrent document request.

Plaintiff originally noticed Defendant’s deposition in October of 2017. By agreement, the deposition was continued to April 2018. The notice was accompanied with a

request for production of documents pursuant to Code of Civil Procedure section 2025.210.

At Defendant’s request, Plaintiff arranged the service of an interpreter.

On the day of the deposition, Plaintiff was informed that the interpreter had been in an accident and would not be able to appear. Plaintiff was able to retain a new interpreter who appeared, and Defendant’s deposition commenced at 1:03 p.m.

Defendant’s deposition proceeded until his counsel ceased the deposition based upon the position that his client had given 7 hours of testimony, starting from the original 9:00 a.m. starting time.

Code of Civil Procedure section 2025.290(a) provides that in general a deposition examination of a witness is limited to seven hours of total testimony. The provision

also states that the court “shall allow additional time, beyond any limits imposed by [the] section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.”

Here, the court finds that Defendant did not provide 7 total testimony, and additional time is needed to fairly examine the Defendant because Defendant’s counsel and the unforeseen circumstance of the interpreter’s accident impeded and delayed the examination. Plaintiff shall have an additional 5 hours of deposition time. This five hour allotment shall be consumed only by time while the deponent is on the record providing, or ready willing and able to provide, testimony in response to Plaintiff’s interrogation.

With respect to Plaintiff’s request for production of documents, the Court finds that Defendant’s objections were without substantial merit, and that Defendant failed to produce documents in his possession, custody or control. Defendant’s objections are overruled.

For example, Plaintiff requested Defendant to produce “All documents reflecting

payments made by YOU to Plaintiff for the “financial liabilities” referenced in Paragraph 2(c) of the Stock Purchase Agreement dated January 1, 2013, a copy of which is

attached to Plaintiffs Complaint as Exhibit A.”

In response, Defendant raised general objections that the request are vague, ambiguous and compound. Defendant further object that the Plaintiff was “requesting documentation that is beyond the scope of discovery, unduly burdensome, and not to
lead to discoverable or admissible evidence regarding this subject case. F109urther objection: These request [sic] call for an expert opinion and/or for legal theories which Defendant believes in good faith it may rely on at trial, which are protected by the

attorney work-product privilege and experts yet to be exchanged [citations].” Defendant also objected on the ground that requests called for an expert opinion or

legal theories that Defendant may rely upon at trial which are protected by the attorney work product privilege and that expert witness exchange was premature.

Defendant opposes the motion to produce further document contending that his objections were all valid, and that he has already produced documents as a gesture of

good faith to RPD Nos. 1, 2, 3 and 17. Defendant contends it would be onerous for him to produce documents that he contends he already produced in response to

earlier demands by the Plaintiff.

Defendant shall produce to Plaintiff all responsive documents in his possession, custody or control without objection on or before June 15, 2018. If Defendant claims that any responsive document is protected by privilege, Defendant shall provide a
privilege log. Defendant shall submit to further deposition on or before July 6, 2018, unless the parties are able to stipulate to a later date. If the parties are unable to agree to a date for the deposition, it shall be held on a date selected by Plaintiff in

good faith.

This minute order is immediately effective. A formal order and further notice are not

required.