Motion To Strike Deposition Corrections
Matter on the Law & Motion / Discovery calendar for Wednesday, July 23, 2025, Line 2 [Part 1 of 2 of the tentative ruling]. DEFENDANT PACIFIC GAS & ELECTRIC's Motion To Strike Deposition Corrections.
Defendant PG&E's motion to strike plaintiff Dave Jolly's deposition corrections is denied without prejudice as unripe. PG&E contends that a series of corrections Jolly made to his deposition transcript are actually substantive contradictions that should be stricken. PG&E relies on cases where trial courts have disregarded purported corrections in deciding summary judgment motions. (See Gray v. Reeves (1977) 76 Cal.App.3d 567, 574; Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382 [citing summary judgment rule that "when a defendant can establish his defense with the plaintiff's admissions sufficient to pass the strict construction test imposed on the moving party (citations), the credibility of the admissions are valued so highly that the controverting affidavits may be disregarded as irrelevant, inadmissible or evasive"]; Tiffany Builders, LLC v.
Delrahim (2023) 97 Cal.App.5th 536, 548; Vulk v. State Farm General Insurance Company (2021) 69 Cal.App.5th 243, 258.)
The language of "striking" a correction is used in some of these cases, but what they really mean is that the correction is disregarded for purposes of determining whether there are triable issues of fact. PG&E points to no authority that this court has the freestanding power to strike portions of a deposition such that they cannot be used by anyone for any purpose. (The federal case PG&E relies on, Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc. (9th Cir. 2005) 397 F.3d 1217, 1227, is slightly different; it appears that federal courts recognize a freestanding motion to strike any untimely or improper deposition corrections under Fed. R. Civ. P. 30, a rule that does not apply to this proceeding.)
Moreover, if the case proceeds to trial and deposition testimony is used at trial, there is authority that both the corrected and uncorrected versions can go before the jury and the jury can decide what to make of the fact that a deponent offered a correction. (See
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The court thus concludes that it does not have freestanding authority to strike contradictory deposition corrections under the sham affidavit doctrine. The difference between the deposition testimony and the corrections will become material only at summary judgment and at trial. Because this court does not have a summary judgment motion before it now, it has no occasion or basis to evaluate whether the corrections are contradictory or not. Similarly, the question of what deposition testimony can be heard by the jury (if any) is a question reserved for the trial court.
PG&E asks in the alternative for leave to file supplemental briefing on its summary judgment motion to address the corrections. The court denies this request; there is no pending summary judgment motion on this court's calendar and in any event the procedural statute concerning how to make and oppose summary judgment motions is strictly construed and does not provide for supplemental briefing.
[End of part 1 of 2 of the tentative ruling] =(301/CVA) |