Response ReplyCal. Super. - 6th Dist.July 21, 2016OLOOONOUO‘l-bQJNA NNNNNNNNNAAAAAAAAAA mflmmkwN-‘OQWNQO'IgCflNA DAVID J. STOCK (SBN 85655) PEIYU LI (SBN 328500) RANKIN | STOCK | HEABERLIN | ONEAL E'ectmn'Fa'W Wed 96 No. Third Street, Suite 500 by Superior Court 0f CA, San Jose, California 951 12-7709 COUMY 0f Santa Clara, Telephone : (408) 293-0463 on 5/1 2/2020 4:52 PM Facsimile : (408) 293-9514 Reviewed By: Tunisia Turner Case #1 6CV297988 Attorneys for Defendants Envelope: 4332213 GREGORY STERLING, RECEIVERS, INC. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA AZAR DASTGAH, Case N0. 160V297988 REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR ORDER GRANTING LEAVE TO TAKE SUBSEQUENT DEPOSITION Plaintiffs, vs. GREGORY STERLING, RECEIVERS, |NC., et al. Hearing Date: May 21, 2020 Time: 9:00 a.m. Dept: 8 Defendants. vvvvvvvvvvv TRIAL DATE: TBD Defendants Gregory Sterling and Receivers, Inc. herein provide reply to Plaintiff Azar Dastgah’s Opposition to Defendants’ Motion for Order Granting Leave to Take Subsequent Deposition. l. INTRODUCTION In her Opposition, Plaintiff argues that there is no compelling reason to allow Defendants to take a second deposition of Plaintiff. However, the discovery statutes do not require Defendants to show there is a “compelling reason” for a subsequent deposition. Under California Code of Civil Procedure, court has discretion to grant leave to take a subsequent deposition “for good cause shown.” Defendants have articulated specific facts to show that a limited second deposition of Plaintiff is necessary for effective trial preparation and to prevent surprise at trial, supporting a finding of “good cause.” Plaintiff further argues that if the Court grants Defendant’s motion, the Court should likewise allow for Plaintiff to retake the deposition of Defendants. This position is not 1 REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR ORDER GRANTING LEAVE TO TAKE SUBSEQUENT DEPOSITION OLOOONOUO‘l-bQJNA NNNNNNNNNAAAAAAAAAA mflmmkwN-‘OQWNQO'IgCflNA supported by law or by the factual circumstances of this case. If Plaintiff wishes to take a subsequent deposition of the Defendant Mr. Sterling, they have the same opportunity: File a motion for leave to do so, with appropriate supporting reasoning for good cause to do so. Unlike the Plaintiff, Mr. Sterling does not claim injury due to the accident and there are no new issues upon which to question him that would have arisen since he was deposed. Accordingly, Defendants’ Motion for Order Granting Leave to Take Subsequent Deposition should be granted. II. LEGAL ARGUMENT Code of Civil Procedure § 2025.61 O(b) expressly allows subsequent depositions of a party “for good cause shown.” Code Civ. Proc. § 2025.610(b). “Good cause” may be found to justify discovery where specific facts show that the discovery is necessary for effective trial preparation or to prevent surprise at trial. Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 588. California courts have reiterated that discovery provisions in the Civil Discovery Act of 1986 and the Civil Discovery Act which replaces it, are to be liberally construed in favor of disclosure. Flagship Theaters of Palm Des., LLC v. Century Theaters, Inc. (2011) 198 Cal.App.4th 1366, 1383. One key legislative purpose of the discovery statutes is “to educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial.” Emerson Electric Co. v. Superior Court (1 997) 16 Cal.4th 1101, 1102. The right to discovery is subject to the sound discretion of the trial court. See Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 382. In exercising its discretion, the trial court bases its decision on the language of the Civil Discovery Act and the legislative purpose of avoiding surprise and preventing fabrication of evidence at trial. Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1119. California’s liberal approach to permissible discovery has led the courts to resolve any doubt in favor of permitting discovery. Non‘on v. Superior Court (1994) 24 Cal.App.4th 1750, 1761. 2 REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR ORDER GRANTING LEAVE TO TAKE SUBSEQUENT DEPOSITION OLOOONOUO‘l-bQJNA NNNNNNNNNAAAAAAAAAA mflmmkwN-‘OQWNQO'IgCflNA Here, since the initial 2017 deposition, Plaintiff has undergone two carpal tunnel release procedures on both hands, and a left ulnar transposition surgery. Further, in 2019 she decided to leave her podiatrist practice and enrolled in a master’s program at UCSF. The need for discovery of those subsequent new developments since the initial deposition constitute “good cause” to re-depose Plaintiff on issues which are of consequence and would lead to the discovery of admissible evidence relating to Plaintiff’s medical claims and economic losses. Therefore, a second deposition of Plaintiff is vital to the preparation and presentation of Defendants’ case at trial and to efficacious settlement of the dispute. Second, a subsequent deposition of Plaintiff limited to information which was unavailable at the time of the first deposition would not place undue burden on Plaintiff. The second deposition is of limited scope as only facts and developments occurred after the initial deposition will be inquired. In addition, a second deposition will not be cumulative and duplicative because the information sought in the oral deposition of Plaintiff is not otherwise obtainable from other sources. If a subsequent deposition of Plaintiff is not allowed, Defendants would not be able to effectively assess the case, to prepare for trial, or to make informed decisions on settlement. Finally, if this Court grants Defendants’ motion, Plaintiff is not entitled to a second deposition of defendant Gregory Sterling absent a showing of “good cause” pursuant to Code of Civil Procedure § 2025.610(b). Plaintiff fails to provide any legal authority in support of her position that, in fairness, the court should allow her to retake Defendant’s deposition. Moreover, Plaintiff has not provided any legitimate reason as to why Gregory Sterling’s deposition testimony is insufficient and should be supplemented. III. CONCLUSION A second deposition of Plaintiff is necessary for effective trial preparation and settlement negotiation given new information comes to light relating to the subject of Plaintiff’s initial deposition. Defendants should be allowed to re-depose Plaintiff with respect to the new developments pursuant to Code of Civil Procedure § 2025.610(b). Denial of Defendants’ request for a second deposition of Plaintiff would be inconsistent 3 REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR ORDER GRANTING LEAVE TO TAKE SUBSEQUENT DEPOSITION ED m *4 Oi U! -h b.) N -t MMMMNMMMMAAAAA-L-L-x-LA mflmmah-WM-icmm‘flmm-hwm-‘D with the expressed legislative purpose of the discovery statutes to promote settlement and expedite trial, as well as "California’s liberal approach to permissible discovery.” Dated: May 12, 2020 RANKIN | STOC'IK | HEABERLIN I ONEAL 3'” ‘i q By: "' DAVID J. ST CK Attorneys f0 ’ efendants, GREGORY STERLING and RECEIVERS, INC. 4 REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR OQDER GRANTING LEAVE TO TAKE SUBSEQUENT DEPOSITION (DmNOU'IAOON-K NNNNNNNNNAJAAAAAAAA mflmmwa-‘OtmeOU'I-th-KO Case Name: Dastgah v. Sterlinq. et al. Case No: 1GCV297988 PROOF OF SERVICE I, the undersigned, hereby declare that | am over the age of eighteen years and not a party to the within action. My business address is 96 No. Third Street, Suite 500, San Jose, California 951 12. l am employed in the County of Santa Clara where this service occurs. On the date indicated below | served a true copy of the following documents: REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR ORDER GRANTING LEAVE TO TAKE SUBSEQUENT DEPOSITION [ X ] (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, | caused the documents to be sent to the persons at the e-mail addresses listed. | did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. DAVID CIENFUEGOS, ESQ Attorneys for Plaintiff, AZAR DASTGAH Deldar Legal 1999 S. Bascom Ave., Suite 700 (408) 645-6623 P / (408) 645-6624 F Campbell, CA 95008 Email: dcienfueqos@deldarleqal.com | declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 12, 2020, at San Jose, California. {jam pfl/iwvwa- Jyfie Simm‘Er'I’s
