Case Number: BC652456 Hearing Date: March 06, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Cassie Jackson,

Plaintiff,

v.

Barbara Jackson,

Defendant.

Case No.: BC652456

Hearing Date: March 6, 2019

[TENTATIVE] order RE:

DEFENDANT’S motion for order compelling guardian ad litem to respond to deposition questions

BACKGROUND

Plaintiff Cassie Jackson (“Plaintiff”), by and through her guardian ad litem, Tirzah Jackson (“GAL”), claims she suffered injuries while under the supervision of Defendant Beverly Jackson (“Defendant”). Defendant is GAL’s mother and Plaintiff’s grandmother. Defendant moves to compel GAL to respond to deposition questions. The motion is granted with respect to all questions except for Question #1 through Question #4.

LEGAL STANDARD

Per Code of Civil Procedure section 2025.480, if a deponent fails to answer any question at deposition, the party that noticed the deposition may move to compel the deponent to answer. (Code Civ. Proc., § 2025.480, subd. (a).)

DISCUSSION

A. Question #1 through Question #4

The Court denies the motion with respect to these questions because the GAL asserted privilege. The questions inquired into the reasons the GAL left the earlier deposition and appeared to inquire into her communications with counsel. To the extent the GAL left the deposition based on the advice of counsel, the answers would call for the content of privileged communications. Therefore, the motion is denied with respect to these questions.

B. The Remaining Questions at Issue

The motion is granted with respect to the remaining questions at issue. As a general matter, Plaintiff’s counsel acted inappropriately by instructing the witness not to answer questions on grounds other than privilege. Counsel should not instruct a deponent not to answer any question unless the question implicates a privilege. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014.) That alone supports the question to grant Defendant’s motion.

Regardless, the questions at issue are fair and appropriate. A party may obtain discovery on any matter that “appears reasonably calculated to lead to the discovery of admissible evidence . . . .” (Code Civ. Proc., § 2017.010.) This rule is “applied liberally in favor of discovery . . . , and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, emphasis original.) The GAL’s objections to Questions #5, #6, #13, and #14 are overruled on this basis. These questions appear to be calculated to determine if other incidents may be responsible for Plaintiff’s injuries or if there are depositions in other cases that might be relevant in this case. Plaintiff’s counsel instructed the witness not to answer based on “pending litigation” (not privilege). That was not appropriate.

The GAL appears to argue that Questions #7 through #10 were answered in some form. However, it is not clear they were answered to the satisfaction of Defendant, because Plaintiff’s counsel instructed the witness not to answer repeatedly on invalid grounds. For example, Plaintiff’s counsel instructed the witness not to answer based on “privacy,” clarifying that the GAL was not asserting a privilege. On another occasion, Plaintiff’s counsel stated: “Your question is argumentative, with the intent to harass and embarrass the witness. And I am going to instruct her not to answer based on those grounds.” By doing so, Plaintiff’s counsel “muddied” the record, so it is unclear whether the questions were answered to the satisfaction of Defendant. Therefore, the motion is granted with respect to these questions.

The motion is granted with respect to Question #11, which essentially asked the GAL to explain what she meant when she testified that Defendant should have done more to protect her daughter:

A: . . . But I felt like, if my mother was more responsible and paid more attention to my daughter, then I feel that my daughter wouldn’t be more hurt. I just feel, like, being more responsible is the word.

Q: In your mind, what did you want your mom to have done?

Plaintiff’s counsel objected on the basis that the question calls for an expert opinion and instructed the GAL not to answer. Not only is the objection without merit, such an objection is not a basis to refuse to answer the question. Regardless, the question “appears reasonably calculated to lead to the discovery of admissible evidence,” especially if the GAL will be a witness at trial.

In Question #12, Defendant asked the GAL whether she has been arrested. Again, Plaintiff’s counsel instructed the GAL not to answer based on “privacy,” which is an inappropriate ground. The GAL now argues that the question was irrelevant. As an initial matter, that does not justify her refusal to answer the question. But to the extent the Court considers the merits of the question, it “appears reasonably calculated to lead to the discovery of admissible evidence.” The GAL is a potential witness at trial, i.e., she may testify that she left her daughter with Defendant and observed the injuries. This question is intended to elicit impeachment evidence.

Finally, Questions #15 through #17, which inquired whether the GAL was seeking money from Defendant, are fair questions. Defendant is entitled to know what damages Plaintiff is seeking and whether there is some bias or self-interest motivating this action.

As a general matter, the Court is concerned by Plaintiff’s counsel’s instructions to the GAL not to answer questions. Not only are the asserted objections not a basis to refuse to answer questions, at times, Plaintiff’s counsel refused to identify an objection:

Plaintiff’s Counsel: Do not answer that question. Are you done, Counsel?

Defendant’s Counsel: What’s the objection?

Plaintiff’s Counsel: I don’t have to put an objection.

Defendant’s Counsel: Yes, you do.

Plaintiff’s Counsel: No, I don’t. Don’t tell me what to do. I am instructing her not to answer. The question is with the intent to harass the witness.

Except for matters of privilege or trade secret, it is not appropriate to instruct the witness not to answer.

C. Sanctions

Defendant requests discovery sanctions against the GAL and Plaintiff’s counsel in the amount of $2,943.20. Defendant also request the Court impose punitive sanctions of $1,500, per Code of Civil Procedure section 177.5, as well as an issue sanction. With respect to discovery sanctions, the Court finds that the GAL and Plaintiff’s Counsel’s conduct during the deposition constituted an abuse of the discovery process. Indeed, the GAL should have answered every question unless she did not know the answer, did not understand the question, or asserted a valid privilege (or trade secret). Therefore, the Court finds that discovery sanctions are appropriate. The Court orders the GAL and Plaintiff’s counsel to pay, jointly and severally, discovery sanctions in the amount of $1,260 based upon six hours of attorney time to prepare and file the pleadings and to appear at the hearing, as well as the filing fee of $60. Defendant requests that the Court order the GAL and Plaintiff’s counsel to pay $1,683.20 for the costs of the court reporters for the prior depositions. That would not be appropriate, as the GAL’s and Plaintiff’s counsel’s conduct does not require a repeat of the entirety of the deposition. The Court would order the GAL and Plaintiff’s counsel to pay for the court reporter for the session to finish the deposition, because that was motivated by the issues raised in this motion. However, the Court cannot order that, because Defendant did not request that relief in the motion.

The Court declines to order punitive sanctions under Code of Civil Procedure section 177.5 or an issue sanction. The Court employs a system of gradual sanctions, so discovery sanctions are sufficient to address the issues. However, if there are additional problems, the Court will revisit the issue of punitive sanctions, issue sanctions, or even terminating sanctions.

CONCLUSION AND ORDER

Defendant’s motion to compel is granted with respect to all questions except for Questions #1 through #4 which implicate attorney-client privilege. The GAL and Plaintiff’s counsel shall pay Defendant, jointly and severally, $1,260 in discovery sanctions. The Court denies the request for punitive sanctions under Code of Civil Procedure section 177.5 and issue sanctions. Defendant shall give notice and file proof of such with the Court.

DATED: March 6, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court