Case Name: Reis, et al. v. Tony C. Construction, et al.

Case No.: 2013-1-CV-241016

Defendants Tony C. Construction, Anthony Rivellini and T&M Construction (collectively, “Defendants”) move for an order compelling the further deposition of plaintiff Manuel Reis (“Reis” or “Plaintiff”).  Plaintiff moves for an order compelling the further deposition of defendant Anthony Rivellini (“Rivellini”).

  1. Factual Background

This action arises out of an accident at a construction site in a commercial building located at 1280 East San Fernando, San Jose.  On March 15, 2011, Reis was drilling holes for the installation of a parapet when the drill bit of a rotohammer he was using became struck in a concrete wall.  As a result, the base of the drill rotated and Reis fell off the roof, injuring himself.  Rivellini was listed as the general contractor on the permits issued by the City of San Jose for the work performed on the property.  Defendants are alleged to have intentionally misrepresented that Rivellini would act as general contractor and to have fraudulently obtained permits from the City of San Jose based on such misrepresentations.

On February 13, 2013, Reis and his wife filed a complaint against Defendants asserting claims for (1) negligence, (2) negligence per se, and (3) loss of consortium.  In May 2015, the Court heard and denied Defendants’ motion for summary judgment with respect to the complaint.  On August 28, 2015, Plaintiff filed a motion for leave to amend seeking to add a cause of action for fraud as well as a prayer for punitive damages in connection with that claim.  On September 29, 2015, the motion was granted, with Plaintiff ordered to separately file and serve his first amended complaint (“FAC”).  The amended pleading was filed on October 22, 2015, adding a fourth cause of action for “fraud, concealment, negligent misrepresentation, conspiracy to commit fraud.”  Defendants subsequently unsuccessfully demurred to this additional claim in the FAC in February 2016.  Their motion to strike Plaintiff’s request for punitive damages was denied at the same time.

  1. Discovery Disputes
  1. Defendants’ Motion to Compel

In January 2016, shortly after Defendants’ motion to strike Plaintiff’s request for punitive damages was denied, their counsel emailed opposing counsel requesting a date for a second deposition of Reis to question him about the “new cause of action.”  (Declaration of Kevin P. Cody in Support of Defendants’ Motion to Compel Further Deposition (“Cody Decl.”), ¶ 3 and Exhibit B.)  Plaintiff’s counsel indicated in his response that he would “start looking for dates.”  (Id.)  Thereafter, Defendants’ counsel wrote opposing counsel on a number of occasions in an effort to set up Reis’ deposition.  (Cody Decl., ¶¶ 4-9.)  On January 22, 2016, because he had not yet been provided with a date by opposing counsel, Defendants’ counsel sent a letter which included a notice of deposition setting the deposition for February 8th.  (Id., ¶ 4 and Exhibit C.) In the letter, counsel asked Plaintiff’s counsel to provide another date within a week or two of the selected date if it did not work for him.  (Id.)

In a follow up email sent on February 2, 2016, Defendants’ counsel inquired as to whether the deposition was going forward as noticed.  (Cody Decl., ¶ 5 and Exhibit D.)  Opposing counsel responded that it would not because he was in trial.  (Id.)  Consequently, Defendants’ counsel waited a month to inquire again about the deposition, sending another letter on March 16.  (Id., ¶ 6 and Exhibit E.)  Plaintiff’s counsel promised to respond to the substance of the letter, but did not do so until April 13, at which point Defendants’ counsel had already begun to prepare the instant motion to compel.  (Id.)  In a letter dated April 13th, Plaintiff’s counsel set forth certain conditions for a further deposition of Reis, including further depositions of Defendants and time and subject matter limitations.  (Id., ¶ 7 and Exhibit F.)  Defendants’ counsel responded the following day, stating that he would not agree to produce Rivellini for further deposition, and addressing the conditions regarding the length of deposition and the scope of the subject matter.  (Id., ¶ 8 and Exhibit G.)  He further stated that he would not file the motion until the following day in hopes that the parties could resolve their issues.  (Id.)  No further response from Defendants was received.

Consequently, on April 15, 2016, Defendants filed the instant motion to compel a further deposition of Reis.  On May 4, 2016, Plaintiff filed his opposition.  Defendants filed their reply on May 10, 2016.

  1. Plaintiff’s Motion to Compel

On March 16, 2016, in a letter sent to Plaintiff’s counsel regarding the need for a further deposition of Plaintiff, Defendants’ counsel advised that no further deposition of Rivellini would be considered because there was no basis for an additional session.  (Declaration of Eustace De Saint Phalle in Support of Motion to Compel Further Deposition (“De Saint Phalle Decl.”), ¶ 18 and Exhibit 4.)

On April 13, 2016, Plaintiff’s counsel stated that Plaintiff was amendable to an additional deposition of Reis, but only subject to certain temporal and subject matter limitations.  (De Sainte Phalle Decl., ¶ 19 and Exhibit 4.)  Counsel also requested that Defendants, including Rivellini, be made available for deposition.  (Id.)  In responding correspondence dated April 14, 2016, Defendants’ counsel stated categorically that no further deposition of Rivellini would be considered because at his prior deposition he had “explained exactly what transpired with the building department and the permit process.”  (Id., ¶ 20 and Exhibit 4.)

In additional meet and confer exchanges that followed, Plaintiff’s counsel explained that there were many issues related to the fraud claims added in the FAC that had not been covered in Rivellini’s first deposition in 2014, thereby necessitating a further deposition.  (De Saint Phalle Decl., ¶¶ 21, 22.)  On April 19, 2016, Plaintiff’s counsel sent a letter to opposing counsel outlining, among other things, Plaintiff’s need for a further deposition of Rivellini based on his new fraud claims, and the topics not covered at the initial deposition.  (De Saint Phalle Decl., ¶ 23 and Exhibit 4.)  Counsel requested that the parties meet and confer to arrive at an acceptable list of topics and time limits that would apply to any further party depositions related to the new fraud claims, and stated that Plaintiff would file a motion to compel a further deposition of Rivellini unless the parties could resolve their issues.  (Id.)

On April 21, 2016, Defendants’ counsel replied, refusing to produce Rivellini for a further deposition based on his contention that Plaintiff’s former counsel had questioned Rivellini “about all of the topics on which you now wish to re-depose him” at his prior deposition.  (De Saint Phalle Decl., ¶ 24 and Exhibit 4.)  Counsel further argued that because Plaintiff had “chosen to amend” the complaint, he was not entitled to further discovery of any new issues raises.  (Id.)

The parties were unable to resolve their dispute over a second deposition of Rivellini, and therefore on April 22, 2016, Plaintiff filed the instant motion to compel further deposition.  Defendants filed their opposition on May 4, 2016.  On May 10, 2016, Plaintiff filed his reply.

  • Discussion
  1. Defendants’ Motion to Compel

Defendants move for an order compelling a further deposition of Reis pursuant to Code of Civil Procedure section 2025.610, subdivision (b), which provides that, for good cause shown, the court may grant leave to take a second deposition of a deponent.  Here, Defendants insist that such good cause exists because Reis was initially deposed well before the FAC was filed and that pleading raises new allegations, issues and facts, and theories of liability never asserted in the original complaint.  Consequently, Defendants assert, Reis was never questioned when he was previously deposed about any of the foregoing items because they simply were not part of the pleadings that existed at that time.  If they are unable to question Reis on these new matters, Defendants contend, they will be severely prejudiced.

In his opposition, Plaintiff does not dispute Defendants’ contention that good cause exists to depose him a second time, but argues that the deposition should be limited to two hours in duration and that Defendants should only be permitted to depose him on the new claims and allegations.[1]

It is abundantly clear that good cause exists for Reis to be deposed a second time given the new allegations and claims set forth in the FAC, which was filed well after he was initially deposed by Defendants.  With regard to the length of the deposition, the Court is not persuaded that a formal temporal limitation is necessary, especially given the representations by Defendants’ counsel in meet and confer correspondence with opposing counsel that he would likely need only 2-3 hours to question Reis on the new allegations and claims in the FAC.  The Court trusts that Defendants’ counsel will make his best efforts to adhere to this representation, as well as his representation that he does not intend to cover old ground with his questioning.  The parties largely appear to be in agreement in this regard (i.e., the topics that will be discussed and length of deposition), and therefore the Court will not place any additional formal limitations on Reis’ second deposition.

In accordance with the foregoing, Defendants’ motion to compel Reis’ further deposition is GRANTED.

  1. Plaintiff’s Motion to Compel

Plaintiff moves for an order compelling a further deposition of Rivellini pursuant to Code of Civil Procedure section 2025.610, subdivision (b), based on his contention that good cause exists for such additional questioning.  Specifically, Plaintiff argues that it is necessary to further depose Rivellini because at the time his initial deposition was taken in March 2014, he was only pursuing a claim for negligence against Rivellini based on his understanding that Rivellini was the general contractor for the project that he was working on when he was injured.  Now, Plaintiff notes, he is pursuing claims for fraud and conspiracy based on Rivellini’s purportedly false representation that he was the general contractor on the project.

Defendants argue to the contrary in their opposition, with their primary argument being that Plaintiff’s prior counsel was well aware of the facts upon which his fraud claim is based, particularly Rivellini falsely stating that he would be the general contractor, prior to when Rivellini was deposed.  Thus, Defendants assert, no good cause exists for a further deposition because Plaintiff’s counsel would only be reexamining Rivellini on the same facts raised by his earlier discovery responses and about which he was already examined, albeit not to the satisfaction of current counsel.  According to Defendants, to hold otherwise would be to equate the good cause component contained in Code of Civil Procedure section 2025.610 with a party’s counsel simply conjuring up additional questions that might have been asked of a deponent at his initial deposition.

Plaintiff counters that the new fraud claims in the FAC- intentional misrepresentation, concealment, and conspiracy- have many elements beyond the bare fact that Rivellini falsely stated that he would be the general contractor, and these elements were not addressed at his prior deposition.  Plaintiff further insists that it would be unfair to assume that his prior counsel would have enough knowledge of the facts related to the fraud, especially considering the fact that many of the new allegations and theories of liability (particularly conspiracy) that are present in the FAC were developed based on information that was obtained in discovery after Rivellini’s deposition.

Ultimately, the Court finds Plaintiff’s contentions to be persuasive and thus that good cause exists to compel the further deposition of Rivellini.  There is no doubt that the FAC expanded the subject matter and scope of relevant facts in this litigation and Rivellini was not questioned on these items and many of the requisite elements of the new claims in his first deposition.  Plaintiff’s prior counsel cannot reasonably have been expected to question Rivellini extensively on these issues at that time, especially absent information which suggested the existence of a conspiracy to defraud between Rivellini and Carlos and Manuela Silveira, members of the LLC which owned the property where Plaintiff was injured, that was gleaned from the depositions of those individuals that took place well after Rivellini’s.  (De Saint Phalle Decl., ¶ 9.)  In order to adequately prepare for trial, Plaintiff is entitled to depose Rivellini on these new matters.

The Court will not place any formal limitations on the scope or length of Rivellini’s deposition, but trusts that Plaintiff’s counsel will make his best efforts to adhere to his representation of limiting the questioning to issues relating to the new causes of action in a session not to exceed two hours in length.

In accordance with the foregoing, Plaintiff’s motion to compel Rivellini’s further deposition is GRANTED.

  1. Conclusion and Order

Defendants’ motion to compel Reis’ further deposition is GRANTED.

Plaintiff’s motion to compel Rivellini’s further deposition is GRANTED.

[1] The bulk of Plaintiff’s opposition is devoted to arguing that good cause exists for a second deposition of Rivellini.  However, whether or not good cause exists to depose Rivellini is entirely separate from the issue of whether such good cause exists to depose Reis for a second time.  Consequently, most of the substance of Plaintiff’s opposition is largely irrelevant to the disposition of Defendants’ motion to compel.