Lawzilla Additional Information:
Company information about defendant Romano’s Towing.

Case Number: BC643955 Hearing Date: March 06, 2018 Dept: 46

Case Number: BC643955
MARIA NAVARRETTE VS ROMANOS TOWING INC ET AL

Filing Date: 12/15/2016
Case Type: Motor Vehicle – PI/PD/WD (General Jurisdiction)
Status: Pending

Future Hearings

03/06/2018 at 08:32 am in department 46 at 111 North Hill Street, Los Angeles, CA 90012
Motion to Compel(THE CONTINUED DEPOSITION;)

TENTATIVE RULING

Motion to Compel Further deposition is DENIED. Defendant is ordered to pay Plaintiff monetary sanctions of $1000.

DISCUSSION

P was deposed on 11/7/17 and 11/10/17. (Declaration of Judith E. Felz [hereinafter “Felz Dec.”] ¶¶ 6-7). Defendant’s counsel sent meet and confer correspondence to Plaintiff’s counsel on 1/2/18 (a Tuesday), demanding to know if Plaintiff would answer a list of questions and requiring a response by 1/4/18 (a Thursday). (Id. Exhibit H). The instant motion was filed on 1/8/18, the following Monday.

CCP § 2025.290 states in relevant part:

“(a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

…

(c) It is the intent of the Legislature that any exclusions made by this section shall not be construed to create any presumption or any substantive change to existing law relating to the appropriate time limit for depositions falling within the exclusion. Nothing in this section shall be construed to affect the existing right of any party to move for a protective order or the court’s discretion to make any order that justice requires to limit a deposition in order to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, undue burden, or expense.”

CCP § 2025.480 reads in relevant part as follows:

“(a) If a deponent fails to answer any question…the party seeking discovery may move the court for an order compelling that answer or production.

(b) 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.

…

(h) 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.

(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.

(j) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

CCP § 2016.040 states: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.

Two procedural considerations require that this motion be denied. First, motions to compel deposition answers under Section 2025.480 are properly separate from motions for additional deposition time under Section 2025.290. Ds have improperly joined these motions and paid only a single fee. This alone would be sufficient reason to deny the motion.

Second, Ds’ meet and confer effort was inadequate. A letter sent the day after not only a holiday weekend but the traditional winter vacation, demanding a response within two business days, followed by almost immediate filing of the motion, is simply not a reasonable attempt at informal resolution. What’s more, the letter contains no explanation as to why Ds’ need the identified questions answered, instead simply demanding to know if P would answer the questions and threatening a motion to compel. (Felz Dec. Exhibit H). In short, the letter proffered by Ds was not a meet and confer attempt; it was an ultimatum.

That said, denial of this motion does not preclude the filing of proper, separate motions on the same subject. Therefore the court provides guidance.

CCP § 2025.460 states that only objections as to privilege, the form of the question, and various other procedural matters are waived if not raised at the deposition. Subsection 2025.460(b) also specifies that unless the objecting party demands that the deposition be suspended so that it can move for a protective order, the deposition “shall proceed.” Subsection 2025.460(c) further states that objections with regard to competency, relevancy, materiality, or admissibility are unnecessary at the deposition. Therefore, counsel may only instruct a witness not to answer a question on the basis of privilege, or if she is demanding a halt to the entire deposition in order to obtain a protective order. Stewart v. Colonial Western Agency, Inc. (2001) 87 C.A.4th 1006, 1014.

Privacy is not listed among the objections which may form the basis of an instruction not to answer. The proper means of addressing a privacy issue in a deposition is the implementation of, or a motion for, a protective order. Only one of Plaintiff’s unanswered questions was the subject of a privilege objection; the rest were subject to privacy and relevance objections. Plaintiff had a general duty to either answer the questions or move for a protective order.

However, the questions to which Plaintiff objects on privacy grounds appear to be little more than a thinly-veiled attempt to determine P’s immigration status. Such attempts amount to “unwarranted annoyance and embarrassment” from which a party may be protected under Section 2025.290(c).

Defendants’ motion is DENIED. Since the motion was improperly brought and without an adequate meet and confer attempt, sanctions are appropriate, and are awarded in the amount of $1000 (calculated as 3 hours preparing opposition + 1 hour attending hearing @ $250/hour).

IT IS SO ORDERED:

Frederick C. Shaller, Judge