CHARLES E SWENBERG VS. DMARCIAN, INC, ET AL.

The declaration accompanying the motion states that dmarcian’s counsel made multiple requests throughout the deposition to refrain from improper coaching and speaking objections. (Jul. 29, 2026 Declaration of Benjamin M. Wigley (“Wigley Decl.”), ¶ 6.) It further states that, at the end of the deposition, dmarcian’s counsel attempted to meet and confer on the record with Swenberg’s counsel, and Swenberg’s counsel refused to do so, insisting that no further deposition would take place. (Id., at ¶ 7.)

Finally, the declaration states that, after the end of the deposition, dmarcian’s counsel requested further meetings and conferrals via email, to which Swenberg’s counsel again replied that Swenberg would not be deposed again. (Id., at ¶ 8.) The written communications identified the particular discrete categories of discovery misuse that dmarcian believed required the deposition to be resumed, to which Swenberg’s counsel did not really directly respond, instead

August 18, 2026 Law and Motion Calendar PAGE 3 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ contending that it was “[dmarcian’s counsel’s] problem not mine” that dmarcian had “wasted a lot of deposition time ... .” (Id., at exh. F.)

The level of effort at informal resolution which satisfies the “reasonable and good faith attempt” standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.

(Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) Taking the above factors into account, the declaration is sufficient under the circumstances to show dmarcian’s attempts at informal resolution of the issues raised by the motion were reasonable and made in good and faith. Accordingly, the Court reaches the substance of the motion.

The questions to which dmarcian seeks answers or further answers from Swenberg at a continued deposition consist of two categories: (1) questions to which Swenberg’s counsel purportedly made improper speaking questions thereby coaching Swenberg to answer a certain way, and (2) questions to which Swenberg’s counsel instructed Swenberg not to answer.

The motion is DENIED with respect to the first category. A motion to compel answers at a deposition is the proper remedy only when the deponents “fails to answer” a question—not when the deponent’s response has been improperly coached. (Code Civ. Proc., § 2025.480, subd. (a).) “Coaching a deponent” either through an unnecessary addenda to objections (i.e., ‘speaking objections’) or other means “is, of course, a misuse of the discovery process” and constitutes sanctionable conduct. (Agnone v. Agnone (2025) 111 Cal.App.5th 758, 766; see Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1561–1562.) A fortiori, it also violates the standards of professionalism attorneys licensed in this state swear to uphold. (See State Bar of California Attorney Guidelines of Civility and Professionalism, § 9(a); Cal. Rules of Court, rule 9.7.)

However, when opposing counsel persists in engaging in such conduct, the proper remedy is to suspend the deposition and move for a protective order or seek appointment of a discovery referee. (See Cal. Practice Guide: Civil Procedure Before Trial (TRG 2026) ¶ 8:736.2.) While the deponent has given a coached answer, he has not failed to answer. Accordingly, the motion is denied as to those questions the basis of which is purported coaching or improper objections without an instruction not to answer, such as questions nos. 11–13 as set forth in the July 29, 2026 Separate Statement.

Unlike the first, the second category of questions is indeed remediable by an order compelling answers, as the category consists of questions that have in fact not been answered. Generally, deponents may “not be prevented by counsel from answering a question unless it pertains to privileged matters or deposing counsel’s conduct has reached a stage where suspension is warranted.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015

August 18, 2026 Law and Motion Calendar PAGE 4 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ disapproved on other grounds by Maniago v. Desert Cardiology Consultants’ Medical Group, Inc. (2026) __ Cal.5th __, 346 Cal.Rptr.3d 98, 111.) The deponent’s proper remedy is to suspend the deposition and move for a protective order if a question or line of questioning is irrelevant or repetitive to the point of being harassing—“witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process” (ibid.)—not to refuse to answer the question. (See also State Bar of California Attorney Guidelines of Civility and Professionalism, § 9(a) [“attorney should not direct a deponent to refuse to answer a question or end the deposition without a legal basis for doing so”].)

For example, restrictions on the scope of answers due to purported repetition or calling for speculation such as those interposed in response to question nos. 2 and 6 are improper. Nor are instructions not to answer based on questions that call merely for the deponent’s lay understanding of a legal concept—a mere fact—rather than a legal contention, theory, or application of law regarding the case, such as question no. 8. (See Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1262–1263.) Nor are instructions not to answer based on purported argumentativeness or harassment, such as question no.

21. Nor are instructions not to answer based on the purported irrelevance or lack of personal knowledge as to inadmissible materials, such as question no.

25. While the later use of any answer may be objectionable for various reasons, such grounds are not a proper basis for an instruction not to answer.

Accordingly, the motion is GRANTED as to this second category. Swenberg has already represented he is willing to sit for a further deposition, and the Court orders the resumption of his deposition at a mutually agreed date and time to take place on or before September 10, 2026. dmarcian’s counsel is to include in the formal order a list of all questions within the second category, and Swenberg shall answer all the questions set forth in the formal order and all reasonably delimited questions following up on the answers given. At the resumed deposition, Swenberg’s counsel shall refrain from interposing objections phrased in a manner longer than reasonably necessary to state the grounds for the objection.

Given the impending trial date, the age of the case, and the amount of discovery still contemplated, the Court suggests the parties stipulate to the use of a discovery referee to ensure all outstanding discovery is completed efficiently and without the cost of repeated judicial intervention. There are many excellent discovery referees. If the parties need suggestions, the Court suggests that either the Hon. Marie S. Weiner (Ret.) or the Hon. James McBride would be appropriate choices as a deposition referee for this type of case.

Both dmarcian and Swenberg request the imposition of monetary sanctions, and both requests are DENIED. Only a portion of the questions for which answers are sought to be compelled are the proper basis of a motion to compel, such that both parties have “acted with substantial justification” in bringing and opposing the motion. (Code Civ. Proc., § 2025.480, subd. (j).) Furthermore, to the extent monetary sanctions are sought based on particular discovery misuses, the evidence is insufficient to determine which expenses are reasonable and have been incurred as a result of the particular discovery misuse, given that the fees sought to be reimbursed include the entirety of the only partially successful motion, the entirety of the prior deposition, and speculative future expenses.

August 18, 2026 Law and Motion Calendar PAGE 5 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, counsel for Defendant and Cross-complainant dmarcian shall prepare, for the court’s signature, a written order consistent with this ruling with the additional information discussed above, pursuant to California Rules of Court, rule 3.1312, and shall provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court.