Case Number: BC662041 Hearing Date: January 29, 2019 Dept: 5
Superior Court of California
County of Los Angeles
Department 5
Doron Tal, et al.,
Plaintiffs,
v.
university imaging centers, et al.,
Defendants.
Case No.: BC662041
Hearing Date: January 29, 2019
[TENTATIVE] order RE:
PLAINTIFFs’ motion for order compelling defendant to respond to deposition questions
BACKGROUND
Plaintiffs Doron Tal and Yorit Tal (“Plaintiffs”) sued Defendant Farrokh Zandpour, M.D. (“Defendant”) for medical malpractice. Plaintiffs move to compel Defendant to respond to deposition questions. The motion is granted.
LEGAL STANDARD
Per Code of Civil Procedure section 2025.480, if a deponent fails to answer any question at deposition, the party that noticed the deposition may move to compel the deponent to answer. (Code Civ. Proc., § 2025.480, subd. (a).)
DISCUSSION
Defendant’s counsel instructed him not to answer questions based on objections that the questions were vague, uncertain, lacked foundation, and called for expert testimony. If Defendant objected to the form of those questions, Defendant properly made those objections during the deposition. (See Code Civ. Proc., § 2025.460, subd. (b).) However, those objections are not a valid basis for Defendant’s failure to respond. Counsel should not instruct a deponent not to answer any question unless the question implicates a privilege. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014.) Defendant should have responded to these questions at deposition.
In opposition, Defendant argues that Plaintiff did not lay foundation for Defendant to respond to the questions Plaintiff asked. Lack of foundation is an objection to admissibility at trial. (See Evid. Code, § 701.) To the extent Defendant objected that the questions called for testimony that is not admissible at trial, those objections were unnecessary. (Code Civ. Proc.,
§ 2025.460, subd. (c).) If, as Defendant contends, he could not properly analyze the images Plaintiff’s counsel showed him at deposition, then Defendant should have so stated on the record. Defendant’s failure to respond was unwarranted.
For the same reason, Defendant’s argument in opposition that Plaintiff’s questions called for expert opinions is an objection to the admissibility of his testimony at trial. (See Evid. Code, § 800.) It was unnecessary for Defendant to raise objections based on admissibility at trial during the deposition. The motion to compel is granted.
The Court does not believe Defendant’s conduct is sanctionable, because he was following counsel’s advice and would not be expected to know the law governing this issue. The same is not true for Defendant’s counsel, whose conduct is sanctionable. However, Plaintiff did not request discovery sanctions, so the Court cannot impose them.
CONCLUSION AND ORDER
Plaintiffs’ motion to compel Defendant to answer deposition questions is granted.
Plaintiffs are to give notice of this order, and file proof of service of such.
DATED: January 29, 2019 ___________________________
Stephen I. Goorvitch
Judge of the Superior Court