2012-00125013-CU-PO

Lovely Pickett vs. Safeway, Inc.

Nature of Proceeding: Motion to Compel Appearance and Testimony at Deposition

Filed By: Doyle, Christine M.

Plaintiff’s Motion to Compel the Deposition Testimony of Defendant Jack Parmley is
GRANTED. The request for imposition of sanctions is also GRANTED.

This two motor vehicle accident litigation, involved a freeway collision between an SUV
in which plaintiff was a passenger and which was rear-ended by Safeway employee
Jack Parmley, driving a semi tractor-trailer.

Plaintiff’s counsel noticed the deposition of Jack Parmley, together with the production
of documents for August 14, 2013. Defendant served written objections to that Notice.
Parmley appeared for his deposition, but did not look for or produce any of the
documents in the 19 requests, most specifically his personnel records of prior accident
history and discipline. The plaintiff’s counsel questioned Parmley, then stated on the
record: “But at this point, we’ll conclude it for today for it to be completed at a later
time.”

A motion to compel the production of the documents requested in the Notice of Taking
Deposition, plaintiff’s personnel file, relating to his driving history, physical or mental
acuity or impairment, prior accidents or driving infractions and discipline and training
as a truck driver for Safeway was granted by this Court on Dec. 2, 2013. Production
was ordered by Dec. 12, 2014. Plaintiff represents to the Court that the documents
were not produced until Jan. 16, 2014.

Plaintiff re-noticed Parmley’s deposition for Dec. 4, 2013 (based on a pending trial
date), and then to accommodate defense counsel’s objection that the witness and/or
counsel were unavailable, rescheduled it for Feb. 14, 2014.

Defendant objected on the grounds that there was no stipulation to allow a continued
deposition, and on the grounds that it was noticed for a time/date when the witness or
counsel were unavailable.

Plaintiff asserts that the deposition of Parmley was never completed, as the
documents were not produced until January 2014, after the necessity of a Court order.

In opposition to this motion to compel Parmley to appear for the completion of his
deposition, defendant asserts that it never stipulated to a second deposition of
Parmley, relying upon Code Civ. Proc. § 2025.610. That section provides in part: “(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.”

Here, the Court finds that the deposition was never completed, as plaintiff’s counsel
expressly left it open on August 14, 2013, because the documents requested had not
been produced. Therefore, no stipulation was required. Even if the deposition were
considered to have been completed, the Court finds good cause for an additional
deposition session, as on Dec. 2, 2013 the documents requested (but not produced)
were ordered produced by this Court.

The Court finds that the motion was timely made, and the meet and confer was
sufficient.

Defendant’s Parmley and his counsel shall cooperate in scheduling the completion of
his deposition by a date not later than Monday, June 23, 2014. The Court does not
limit the subject matter of the deposition questions by this order.

The Court awards sanctions to the moving party plaintiff against defendant Safeway
and Parmley in the amount of $2,701.50, representing attorneys’ fees for nine hours
at $275/hr., a $60 filing fee and a $166.50 court reporter fee. C.C.P., sec. 2025.450(g)
(1). Sanctions shall be paid not later than Monday, June 23, 2014.If sanctions are not
paid by the due date, prevailing party may submit a formal order for enforcement
purposes. Newland v Superior Court (1995) 40 Cal.App.4th 608, 610.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.