Case Number: BC635052 Hearing Date: June 24, 2019 Dept: 4A

Plaintiff’s Motion to Compel Second Session of Defendant Ildelfonso Davalo’s Deposition; Appoint a Discovery Referee; Request for Sanctions

Defendant’s Motion for a Protective Order; Request for Sanctions

The Court considered the moving and opposition papers and rules as follows.

BACKGROUND

This case arises out of an automobile collision that occurred on October 2, 2014. On September 30, 2016, Plaintiff Maria Mendoza filed the complaint against Defendants Ildelfonso Davalo, Ayon Nursery, and Jose DeJesus Ayon.

On May 10, 2019, Defendants Ildelfonso Davalos and Jose Dejesus Ayon filed the subject motion for a protective order to prevent the deposition of Ildelfonso Davalos and for sanctions. The motion was brought in anticipation of Plaintiff moving to compel a second session of Defendant’s deposition.

On May 24, 2019, Plaintiff filed a motion for an order compelling the second session of Defendant Ildelfonso Davalos’ deposition, appointing a discovery referee, and awarding sanctions.

In its Opposition to Plaintiff’s Motion to Compel the Second Deposition of Defendant Ildelfonso Davalo, Defendant states, “Defendant’s opposition to plaintiff’s motion to compel the second session of defendant Ildefonso Davalo’s deposition is defendant’s motion for protective order.”

PARTIES’ REQUESTS

Plaintiff requests a court order compelling the second session of the deposition of Defendant Ildelfonso Davalo. Plaintiff also requests an order appointing a discovery referee to be present at the said second session of Defendant Ildelfonso Davalo’s deposition. Plaintiff asks for sanctions in the amount of $7,807.75 against Defendant and Defendant’s counsel.

Defendant requests a protective order preventing the second session to the deposition of Ildelfonso Davalos and sanctions in the amount of $1,940.00 against Plaintiff’s counsel.

LEGAL STANDARD

Compel Subsequent Deposition

“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.” (Code Civ. Proc. § 2025.610, subd. (a).) “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.” (Code Civ. Proc. § 2025.610, subd. (b).)

Protective Order

The court may make any order to protect any party from “unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” (Code Civ. Proc. § 2031.060, subd. (b).) If “good cause” is shown, the court can exercise its discretionary power to limit discovery responses to certain persons. (Id., §§ 2031.060, subd. (b), 2024.420, subd. (b); see also In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298-99.) The granting or denial of relief lies within the sound discretion of the judge. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 379-81 (overruled on other grounds pertaining to attorney work product privilege).) The concept of good cause requires a showing of specific facts demonstrating undue burden, etc., and justifying the relief sought. (See Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.3d 807, 819.)

A motion for a protective order must be accompanied by a meet and confer declaration under Code of Civil Procedure Section 2016.040. (See Code Civ. Proc. §§ 2031.060, subd. (a), 2033.080 subd. (a).)

DISCUSSION

Here, the Court finds good cause to compel a subsequent deposition of Defendant Ildelfonso Davalo. The evidence proffered demonstrates multiple instances of Defendant’s testimony being interrupted by defense counsel. Plaintiff argues that Defendant’s deposition was suspended due to defense counsel’s obstructionist conduct at the deposition. Specifically, Plaintiff presents evidence of Defendant’s counsel interfering with Defendant’s deposition testimony, making speaking objections with no basis, “coaching” the Defendant, and then advising Defendant not to answer Plaintiff’s questions. (See Kheiri Decl., ¶¶ 4-7, Exh. B.)

In opposition, Defendant argues that Defendant’s counsel interjected as necessary due to Plaintiff’s counsel’s misrepresentations of Defendant’s testimony, and that Plaintiff’s counsel was confusing Defendant who, by Defendant’s Counsel’s declaration states, “is a relatively unsophisticated individual.” (Shaver Decl., ¶¶ 12, 20.) Defendant’s purported reasons for interjecting, however, do not justify Defendant’s counsel’s repeated speaking objections, testimony, and instructions not to answer. Instructions by counsel to a witness not to answer a question in deposition are improper except as to privileged or protected information. (Code Civ. Proc. § 2025.460(a); Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006.) Objections as to form shall be stated, but are not a ground for instructing the witness not to answer. (Code Civ. Proc. § 2025.460, subd. (b).)

After reviewing the record with respect to Defendant’s counsel’s disruptions during the deposition, the Court is persuaded that Defendant’s counsel crossed the line between appropriate and inappropriate conduct on multiple occasions. Specifically, the Court finds that Defendant’s counsel’s speaking objections, instructing the witness not to answer where not justified, coaching/leading the witness, and general interference with the deposition process were improper.

In its motion for a protective order, Defendant fails to demonstrate unwarranted annoyance, embarrassment, oppression, or undue burden and expense that would be caused by permitting Plaintiff’s attempt to take a second session of Defendant’s deposition in light of defense counsel’s behavior. Defendant’s effort to argue that Plaintiff’s suspension of the deposition was unwarranted and discourteous is unpersuasive.

The Court finds the suspension was justified because of defense counsel’s repeated speaking objections, coaching and interference with the flow of deposition questioning. While counsel on both sides were clearly agitated and upset during the last minutes of the deposition, the Court cannot find that Plaintiff’s suspension was unduly discourteous under the circumstances. Prior to the suspension, Plaintiff’s attorney tried to “go off the record and man to man have a conversation” but that was unsuccessful. (Davalos Depo. at 86:3-7). He urged defense counsel repeatedly simply to state his objections and refrain from explanations, coaching and suggestions about what he thought the facts were, but to no avail. (E.g., id. at 86:18-87:13). At the end, defense counsel first refused to meet with Plaintiff’s attorney to iron out the issues, then demanded an on-the-record meet and confer, and finally refused to leave when Plaintiff’s counsel suspended the deposition. (Id. at 87:14-16, 88:15-21, 90:2-93:23).

Accordingly, finding good cause, the Court will GRANT Plaintiff’s motion to compel a second deposition of Defendant Ildelfonso Davalo. Depositions are normally limited to seven hours. (Code Civ. Proc. § 2025.290(a).) Although the parties do not address the issue of the length of the second deposition, the Court will allow Plaintiff to depose Defendant Ildelfonso Davalo for an additional three hours, because the transcript indicates that Defendant’s counsel impeded the deposition. Plaintiff has not shown that additional time beyond three hours permitted in the Court’s order is needed to fairly examine Defendant. The three hours will run from the start time set for the deposition in the deposition notice, even if Plaintiff’s counsel chooses to begin at a time later than that start time.

Defendant’s motion for a protective order barring the deposition of Defendant Ildelfonso Davalo and requests for sanctions is DENIED.

Plaintiff also requests the appointment of a discovery referee to preside over the second session of Defendant’s deposition. The motion for appointment of a discovery referee is DENIED. Plaintiff has not met its burden to show that appointment of a discovery referee is “necessary.” (Code Civ. Proc. § 639, subd. (a)(5).) In addition, the appointment of a referee would create unreasonable expense and delay in this case. In lieu of a discovery referee, the Court orders defense counsel to refrain from all speaking objections, to instruct his client not to answer only where privileged or private material may be requested, and to avoid all coaching, suggestions to Plaintiff’s counsel, and commentary on the facts of the case.

The Court finds that sanctions against Defense counsel, Thomas W. Shaver, Esq. of Shaver, Korff & Castronovo, are justified. “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc. § 2023.030, subd. (a).) Defense counsel’s speaking objections, coaching and making statements about the facts, and improper instructions not to answer were not substantially justified.

Plaintiff seeks sanctions in the amount of $7,807.75 based upon deposition fees ($2,497.75), $5,250.00 in attorneys’ fees (based upon 15 hours at an hourly rate of $350.00), and the $60.00 filing fee. The amount of monetary sanctions requested by Plaintiff is punitive and would be unjust under the circumstances. Accordingly, Defendant and his counsel are ordered to pay reasonable monetary sanctions of $1,810.00 to Plaintiff and Plaintiff’s counsel to cover five hours of attorney time and the filing fee. The award of monetary sanctions is due and payable within 30 days from the service of notice of this ruling.

Plaintiff is to give notice of the Court’s ruling.