JUAN MANUEL GUTIERREZ VS CRYSTAL GEYSER WATER COMPANY

Motion to Compel a Second Deposition

Having considered the moving, opposing, and reply papers, the Court rules as follows. 

BACKGROUND

On May 17, 2017, Plaintiff Juan Manuel Gutierrez filed a complaint against Defendant Crystal Geyser Water Company.

On May 25, 2017, Plaintiff Juan Manuel Gutierrez filed an amendment to complaint renaming Doe 1 as Defendant CG Roxane, LLC.

On December 14, 2018, Plaintiff Juan Manuel Gutierrez filed a first amended complaint against Defendants Crystal Geyser Water Company, CG Roxane, LLC, and Superior Transport Ltd.  The first amended complaint alleges negligence, premises liability, and failure to provide workers’ compensation.

On April 3, 2019, Defendant/Cross-Complainant CG Roxane, LLC filed a cross-complaint against Plaintiff/Cross-Defendant Juan Manuel Gutierrez and Cross-Defendants Robert L. Booker, II and Century Park Law Group seeking declaratory relief and alleging a breach of contract, fraud, and negligence.

On April 26, 2019, Defendant/Cross-Complainant CG Roxane, LLC filed a first amended cross-complaint.

On January 24, 2020, the Court dismissed Cross-Defendants Robert L. Booker, II and Century Park Law Group from the first amended cross-complaint.

On February 28, 2020, Defendant/Cross-Complainant CG Roxane, LLC filed a motion to compel a second deposition of Plaintiff/Cross-Defendant Juan Manuel Gutierrez pursuant to California Code of Civil Procedure section 2025.610.

On March 18, 2020, the Court continued the hearing on Defendant/Cross-Complainant CG Roxane, LLC’s motion to compel a second deposition to May 4, 2020.

On April 16, 2020, the Court continued the hearing on Defendant/Cross-Complainant CG Roxane, LLC’s motion to compel a second deposition to July 13, 2020.

On May 7, 2020, the Court entered default against Defendant Superior Transport Ltd.

Trial is set for September 23, 2020.

PARTY’S REQUESTS

Defendant/Cross-Complainant CG Roxane, LLC (“Moving Party”) asks the Court to compel Plaintiff/Cross-Defendant Juan Manuel Gutierrez (“Opposing Party”) to appear for a second deposition.

Opposing Party asks the Court to award sanctions in the amount of $4,050.00 for Moving Party’s abuse of the discovery process.

LEGAL STANDARD

California Code of Civil Procedure section 2025.610 provides, as follows:

(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.

(c) This section does not preclude taking one subsequent deposition of a natural person who has previously been examined under either or both of the following circumstances:

(1) The person was examined as a result of that person’s designation to testify on behalf of an organization under Section 2025.230.

(2) The person was examined pursuant to a court order under Section 485.230, for the limited purpose of discovering pursuant to Section 485.230 the identity, location, and value of property in which the deponent has an interest.

(d) This section does not authorize the taking of more than one subsequent deposition for the limited purpose of Section 485.230.

DISCUSSION

Moving Party asks for Plaintiff to appear for a second deposition limited to the issues that are the subject of Moving Party’s first amended cross-complaint, “specifically the settlement of the case via a Stipulation for Settlement…”  (Motion, 2:11-2:17.)

Moving Party submitted evidence showing the following: (1) the parties entered into a Stipulation for Settlement in September/October 2018; (2) Opposing Party reneged on the settlement; (3) Moving Party filed a cross-complaint (on April 3, 2019) and first amended cross-complaint (on April 26, 2019) based on an alleged breach of the agreement; (4) Moving Party served Opposing Party with discovery, inquiring about facts and requesting information surrounding the Stipulation for Settlement, more specifically requesting a copy of the audiotape between Opposing Party and his counsel (wherein Opposing Party purportedly provided his attorney with consent to enter into the settlement); (5) Opposing Party objected to the discovery on the ground of attorney-client privilege; (6) Moving Party served discovery on Cross-Defendants Robert L. Booker, II and Century Park Law Group seeking the same information and they indicated they would only provide such information upon court order to avoid violating any potential privilege or other ethical considerations; (7) the Court denied Moving Party’s motions to compel after concluding the audiotape sought is protected by the attorney-client privilege; and (8) Moving Party is, therefore, unable to obtain the necessary information by way of written discovery.  (Yoshioka Decl., ¶¶ 4-18, Exhibits A-J.)

The Court finds there is good to grant the motion.  Opposing Party was deposed on his personal injury claims arising from the subject incident on July 26, 2018.  (Yoshioka, Decl. ¶ 3.)  The second deposition sought would be limited to facts and circumstances giving rise to Moving Party’s first amended cross-complaint, which did not occur until after Plaintiff’s first deposition was taken.

Opposing Party argues Moving Party lacks good cause for a second deposition because the cross-complaint is meritless and fraudulent since the Court already ruled the Stipulation for Settlement is not enforceable, and Moving Party seeks to delve into matters protected by the attorney-client privilege (as previously determined by the Court.) :21-7:7; Chichportich Decl., ¶¶ 2-3, Exhibit A.)

The Court did not determine the Stipulation for Settlement is not enforceable.  (Mar. 27, 2019 Order.)  The Court, in ruling on Moving Party’s motion to enforce settlement, merely determined “Plaintiff has presented sufficient evidence that [he] did not sign the settlement agreement himself, and thus the settlement agreement cannot be enforced pursuant to California Code of Civil Procedure section 664.6.”  (Ibid. [emphasis added].)  The Court also granted Moving Party’s request to file a cross-complaint.  (Ibid.) Additionally, the Court did not determine that all matters arising out of the cross-complaint are protected by the attorney-client privilege.  Instead, the Court, in ruling on discovery motions, determined “that the communication between [Opposing Party] and the Booker Attorneys falls squarely within the attorney-client privilege in that it was a communication in the context of the attorney’s representation of Plaintiff related to the possible settlement of his claims against [Moving Party]…” and Opposing Party did not impliedly waive the privilege.  (Jan. 2, 2020 Order.) Opposing Party may assert objections to questions asked during the second deposition, including objections based on the attorney-client privilege, if warranted, and Moving Party may bring a motion to compel further testimony, if warranted. 

Based on the foregoing, Moving Party’s motion is granted.  In light of the ruling on the motion, Plaintiff’s request for sanctions is denied.

CONCLUSION

Moving Party’s motion to compel Opposing Party’s second deposition is GRANTED.

Moving Party may take Opposing Party’s second deposition limited to the issues that are the subject of Moving Party’s first amended cross-complaint.

Opposing Party’s request for sanctions is DENIED.

Moving party is order to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.