Case Number: BC614860 Hearing Date: June 25, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Maria Perez,

Plaintiff,

v.

Carolyn JEan Volkoff, et al.,

Defendants.

Case No.: BC614860

Hearing Date: June 25, 2018

[TENTATIVE] order RE:

PLAINTIFF’S motion to compel Defendant’S answers at deposition

BACKGROUND

Plaintiff Maria Perez (“Plaintiff”) alleges that she was injured due to a motor vehicle collision with defendant Carolyn Jean Volkoff (“Defendant”). The complaint, filed March 24, 2018, alleges causes of action for motor vehicle negligence and negligence per se.

The deposition of Defendant occurred on February 22, 2018. During the deposition, defense counsel objected to several questions on different grounds and instructed Defendant not to answer. Plaintiff now moves to compel Defendant to answer those questions. Plaintiff also requests sanctions against Defendant and her counsel. Defendant opposes the motion, and Plaintiff has replied.

LEGAL STANDARD

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP, §2025.480(a).) “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.” (CCP, §2025.480(i).)

Discussion

Plaintiff moves to compel answers to deposition questions that Defendant did not answer based on the objections raised by and instruction of her counsel. Defendant argues in the opposition that the motion was not timely filed and that the Court may not reach the merits of the motion as a result. Thus, the Court will first address the timeliness of the motion.

Timeliness of the Motion

Defendant argues that this motion was not filed within 60 days of “the completion of the record of the deposition” as is required under CCP § 2025.480. Defendant’s argument hinges on the interpretation of the phrase “completion of the record.”[1] Defendant asserts that “the record of the deposition is complete when the reporter sends written notice to the deponent and the parties that the transcript is available.” (Def. Opp., at pg. 5.) Defendant provides no authority for this assertion. Defendant cites to CCP § 2025.520(a) which requires that a court reporter send a written notice to all parties attending the deposition when the deposition transcript is available for reading. However, CCP § 2025.520(a) does not define or establish the time period in which the record of a deposition is deemed completed.

The other subdivisions of CCP § 2025.520 shed some light on what the legislature intended by the phrase “completion of the record.” Section 2025.520 (b) states in relevant part: “For 30 days following each notice under subdivision (a), [unless the parties agree to a shorter time,] the deponent may change the form or the substance of the answer to a question, and may either approve the transcript of the deposition by signing it, or refuse to approve the transcript by not signing it.” In addition, subdivision (f) states: “If the deponent fails or refuses to approve the transcript within the allotted period, the deposition shall be given the same effect as though it had been approved, subject to any changes timely made by the deponent.” Section 2025.520 indicates that a transcript is not completed until the transcript review period is concluded. While a reporter must give notice of the availability of the transcript for reading, the record of the deposition is not completed until the deposition has been signed, or the 30-day review period has run.

Here, Defendant states that she received the transcript on March 15, 2018, and thus the last day to file a motion to compel deposition answers should have been May 14, 2018. Defendant’s calculation fails to account for the 30-day review period. Thus, the May 14, 2018 cutoff is not correct. There is nothing in the record to show that the parties shortened the time for approval of the transcript or to show when the transcript was signed by the deponent. Thus, the Court must assume that the full 30-day period was observed. Taking the 30-day period into account, the completion date for the transcript was April 16, 2018, and the last date to file the motion was June 15, 2018. As such, the instant motion filed on May 23, 2018 is timely.

Even if the time period to file the motion had run as Defendant proposed on May 14, 2018, the Court would still find the motion timely. Plaintiff first filed this motion on March 29, 2018. At the hearing on May 9, 2018, this Court denied the motion without prejudice because discovery was closed at the time of the hearing. During the hearing, the parties signed a stipulation to reopen discovery. Plaintiff promptly brought this motion again after discovery was properly opened. Thus, Plaintiff first attempted and intended to file this motion in a timely manner on March 29, 2018, and refiled the motion in nearly identical form on May 23, 2018. The Court will not deny this motion on timeliness grounds simply because neither party realized that discovery was closed at the time Plaintiff first filed this motion on March 29, 2018. As such, in the Court’s discretion and the interest of determining the issues on the merits, the Court considers this motion timely.

Questions Objected to by Defendant: Rifkind Analysis

All but one of the objections are made on the grounds that the question asks for statements from Defendant in violation of Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255. As such, the Court will first discuss Rifkind and then analyze the questions under Rifkind. In a separate section, the Court will proceed to examine the non-Rifkind objections.

In Rifkind, the plaintiff questioned the defendant about the defendant’s affirmative defenses. (Id. at 1258.) The plaintiff’s questions varied but made the same three inquiries into each affirmative defense: state all facts that support the affirmative defense, state the identity of each witness who has knowledge of any facts supporting the affirmative defense, and identify any documents that pertain to the facts or witnesses. (Ibid.) The Court of Appeals held that “questions of the kind at issue in this case, while entirely appropriate for interrogatories, are not proper in the deposition of a party who is represented by counsel.” (Id. at 1263.) The court reasoned that questions requiring a witness “to make a law-to-fact application is beyond the competence of most lay persons.” (Id. at 1262, internal quotations omitted.) Even if the questions may be characterized as not calling for a legal opinion or are presented as a mixed question of fact or law, these types of questions when used at deposition “are unfair.” (Ibid.) The court explained:

[These questions] call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot. There is no legitimate reason to put the deponent to that exercise. If the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory. The party answering the interrogatory may then, with aid of counsel, apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions.

(Ibid.) Asking a deponent to list the facts or evidence that support a particular legal opinion is unfair to the deponent and better suited for written discovery requests where the party can receive the aid of counsel in arranging the information in terms of the particular contentions. (Id. at 1263.)

Here, Plaintiff requests that the Court compel Defendant to answer five questions which were objected to for purported violations of Rifkind.

Plaintiff first argues that it was improper for Defense counsel to instruct Defendant not to answer under Rifkind. Plaintiff contends that under Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013-1015, only objections related to privilege may go unanswered at a deposition. Under any other basis of objection, the attorney may not instruct their client not to answer. In opposition, Defendant states that the holding Stewart is inapposite because Stewart involved relevance objections. Defendant also, correctly, points out that the deponent in Rifkind was instructed not to answer the improper questions, and that the court found no fault with this instruction.

The Court agrees with Defendant’s arguments. The point of Rifkind is to prevent deponents from being forced to provide law to fact application on the spot during a deposition. If an attorney cannot instruct the deponent not to answer, then the holding of Rifkind would have no effect. The Court of Appeal in Woo v. Lien (Cal. Ct. App., Oct. 2, 2002, No. A094960) 2002 WL 31194374, at *4 came to the same conclusion. An attorney may instruct a witness not to answer deposition questions that are “legal contention questions” as such questions are “not permitted in the course of a deposition.” (Ibid.) While Woo is not a published case, the Court finds its analysis persuasive here. As such, the Court does not find fault with defense counsel’s instruction not to answer questions that are true violations of Rifkind.

Accordingly, the Court will analyze the five questions to determine if they are in fact violations of Rifkind.

Question 1: Volkoff Deposition page 70 lines 8 through 18

Plaintiff’s question reads as follows:

Q: I’ll just read this [Vehicle Code § 22107] into the record.

“No person shall turn a vehicle from a direct course or move right to left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.”

Do you feel you made your left turn with reasonable safety in light of the fact that you hit a pedestrian?

[Defense counsel]: Objection; calls for a legal conclusion., it’s in violation of “Rifkind V Superior Court.” I’m going to instruct her not to answer.”

Here, the Court finds that this question was improper under Rifkind. Plaintiff’s counsel’s question is asking the deponent to state the facts that show she conducted herself in a reasonable manner. As discussed in Rifkind, this question attempts to ask the deponent to make an application of fact to law. Plaintiff is alleging a claim of negligence per se. Reading a Vehicle Code section and then asking the deponent to provide facts showing that she acted reasonably is an attempt to force the deponent to make on the spot applications of facts to the law. This question at deposition is unfair to the deponent and better suited for written discovery where the Defendant can use the assistance of counsel to appropriately apply the facts to the law. As such, the Court denies the request to compel Defendant to answer the question above. Plaintiff’s counsel may ask questions related to the facts known to the deponent, but Plaintiff’s counsel may not require Defendant to provide on the spot statements of fact in regard to specific statutes or codes.

Questions 2 through 5: Related to Causation

Questions 2 through 5 require a similar analysis because they all relate to the same argument surrounding questions of causation at deposition. The questions are as follows:

· Question 2: “Did you feel that you were the cause of [Plaintiff’s] pain?” (Volkoff Depo., at pg. 63:7-8)

· Question 3: “Do you know if [Plaintiff] did anything to cause this accident?” (Id. at pg. 79:25-80:1.)

· Question 4: “Do you believe the sun in your eyes is at fault for this accident?” (Id. at pg. 84:12-13.)

· Question 5: “Do you believe the tree was in any way responsible for this accident, the shadow from the tree?” (Id. at pg. 84:18-19.)

The Court finds that these questions are not impermissible under Rifkind. While causation is an element of negligence, asking a deponent what she thinks “caused” an accident is not necessarily requesting a legal conclusion. Nor do these questions ask for the deponent to apply facts to the law. The deposing party must be able to inquire into the facts of the incident. Questions 2 through 5 merely attempt to discover factual information. Nothing in the questions or the context of the questions suggests that the deponent is being asked to apply facts to the law. As such, the Court will grant Plaintiff’s motion to compel responses to questions 2 through 5.

Non-Rifkind Objections

Finally, the Plaintiff requests that the Court compel answers to the following questions: (6) “I gave you several minutes to read it. There’s no part that you can think of currently in this statement that you disagree with; is that correct?” (Volkoff Depo., at pg. 81:12-15) and (7) “As you sit here today, based on what you’ve read, is there any part of that statement that you read that you disagree with?” (Id. at pg. 82:23-25.)

These questions are better understood in context. Starting on page 81 of the transcript, Plaintiff’s counsel showed the deponent a witness statement from another witness and asked the deponent to read the statement. Plaintiff’s counsel proceeded to ask the deponent if there was any part of the other witness’s statement with which the deponent disagreed. The deponent stated in response, “it didn’t pop up at me.” (Id. at pg. 81:3.) Plaintiff’s counsel then attempted to clarify what the deponent meant by asking question 6, but Defense counsel objected on grounds that the question had been asked and answered, and that it was vague and ambiguous. There was some discussion between Plaintiff’s and Defense Counsel, then—without receiving an answer to question 6—Plaintiff’s counsel asked question 7. Defense counsel objected again, arguing that the deponent did not have personal knowledge as to what that witness perceived. Defense counsel also then instructed the deponent not to answer the question.

Here, the Court finds that Defense counsel’s instruction not to answer the question was improper. As discussed above, under Stewart, counsel may not instruct a deponent not to answer a question when the objection is made on evidentiary grounds not related to the assertion of a privilege. (Stewart, supra, 87 Cal.App.4th at 1014-1015.) In addition, the Court overrules the objections made by Defense counsel. The deponent was merely asked to identify statements with which she disagrees in another witness’s written statement. The witness is not being asked to discuss things outside of her personal knowledge. She is simply being asked to point out factual inconsistencies based on her knowledge. Further, the Court does not find the questions posed to be vague or ambiguous. As such, the Court will compel the witness to answer question 6 and 7.

Sanctions

Both parties request sanctions for the need to bring and oppose this motion respectively. As to Plaintiff’s request for sanctions against Defendant and her counsel Nina Hawkinson, the Court finds that sanctions are appropriate against only Defense counsel of record, Nina Hawkinson. Defense counsel had substantial justification to oppose the motion as to question 1 but did not have justification to instruct her client not to answer the other six questions or to oppose the motion as to these other six questions. The sanctions are imposed only as to Defense counsel because Defendant did not take an active role in the sanctionable conduct. Defendant merely followed the advice of counsel. As such, the Court grants sanctions against Defense counsel of record for 3 hours to attend the IDC, prepare the motion and reply, and appear at the hearing, at $400.00 per hour, plus one $60 filing fee, for a total of $1,260.00. Defense counsel Nina Hawkinson is ordered to pay monetary sanctions in the amount of $1,260.00 to Plaintiff, by and through counsel, within thirty (30) days of notice of this order.

The Court denies Defendant’s request for sanctions. Based on the above findings, the moving party had substantial justification in bringing this motion as all but one of the questions at issue should have been answered at the deposition. As such, the Court finds that the imposition of sanctions on Plaintiff or Plaintiff’s counsel would be unjust.

Conclusion and Order

For the reasons stated above, Plaintiff’s motion to compel deposition answers is denied in part and granted in part. The request to compel the answer to question 1 is denied. The request to compel the answer to questions 2 through 7 is granted.

Plaintiff’s request for sanctions is granted only against Defendant’s counsel of record. Defense counsel Nina Hawkinson is ordered to pay monetary sanctions in the amount of $1,260.00 to Plaintiff, by and through counsel, within thirty (30) days of notice of this order.

Defendant’s request for sanctions is denied.

All parties should note that the hearing on this motion and all future court dates will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

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Plaintiff is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: June 25, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] There does not appear to be any case law on the definition of this term with facts similar to this case. The Court of Appeal has examined the meaning of this phrase where no deposition was held, and the only “record” was the deponent’s objections to the notice of deposition subpoena. (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123.) However, neither party has cited, and the Court has not located any authority interpreting this phrase when a transcript has been produced after a deposition has been held.