Judge: Andrew E. Cooper, Case: 22CHCV01440, Date: 2024-12-05 Tentative Ruling

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Case Number: 22CHCV01440    Hearing Date: December 5, 2024    Dept: F51

MOTIONS FOR PROTECTIVE ORDERS

Motions filed: 7/26/24, 7/29/24

MOVING PARTY: Defendants Jose Armando Priego; and West Coast Arborists, Inc. (collectively, “Defendants”) 

RESPONDING PARTY: Plaintiff Kirk Dietrich Mullins (“Plaintiff”) 

NOTICE: ok 

RELIEF REQUESTED: Protective orders prohibiting the noticed depositions of the following deponents from being taken, and further precluding any attempt to enforce the related production demands:

·         David Evans;

·         Heriberto Coronel;

·         Jose M. Chavarria Manzo;

·         Daniel Villa; and

·         Maria Berry.

Defendants also seek monetary sanctions against Plaintiff and/or his counsel in the total amount of $4,575.00.

TENTATIVE RULING: The motions are granted. The Court declines to issue monetary sanctions.

BACKGROUND

This is a personal injury action in which Plaintiff alleges that on 6/1/22, he was injured when a commercial truck operated by defendant Jose Armando Priego collided with Plaintiff’s motorcycle at the intersection of Del Monte Drive and Park View Road in the City of Santa Clarita. (Compl. ¶ 1.) Plaintiff alleges that at the time of the subject incident, Priego was acting in the course and scope of his employment with defendant West Coast Arborists, Inc. (“WCA”). (Id. at ¶ 6.)

On 12/19/22, Plaintiff filed his complaint, alleging the following causes of action: (1) Negligence/Negligence Per Se; and (2) Statutory Liability. On 2/15/23, Defendants filed their answers.

On 7/3/24, Plaintiff served Defendants with notices of deposition of the five subject deponents. (Ex. A to Decl. of Martin S. McMahan.) On 7/26/24 and 7/29/24, Defendants filed the instant motions. On 11/20/24, Plaintiff filed his opposition. On 11/26/24, Defendants filed their reply.

ANALYSIS

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (Code Civ. Proc. § 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Id. at subd. (b).)

Here, Defendants move for protective orders preventing Plaintiff from deposing each of the five subject deponents, arguing that the deponents have no relevant testimony to offer, therefore their depositions would be unduly burdensome.

1.      Meet and Confer

A motion for a protective order must “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2025.420, subd. (a).) Here, Defendants’ counsel declares that beginning on 3/28/24, he began meet and confer efforts with Plaintiff’s counsel regarding the issues raised herein. (McMahan Decl. ¶ 9.) Counsel for the parties continued to meet and confer but were unable to come to a resolution. (Id. at ¶¶ 10–16.) Accordingly, the Court finds that counsel has satisfied the meet and confer requirements under Code of Civil Procedure section 2025.420, subdivision (a).

2.      Relevance/Undue Burden

Here, Defendants assert that none of the noticed deponents “has any knowledge regarding the underlying traffic accident, the fault of either driver, the cause of any claimed injuries or the extent of those injuries. Without such knowledge, their deposition(s) would be pointless and the pursuit of such discovery is abusive and harassing.” (Defs.’ Mot. 2:16–20.)

Discovery is relevant if it is admissible as evidence, or “appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.)

Here, Defendants argue that “with vicarious liability conceded, there are only four remaining issues to be decided by the jury. First, whether Mr. Priego was negligent while operating the WCA vehicle. Second, whether Mr. Mullins contributed to the accident due to his own negligence. Third, whether the accident caused Mr. Mullins’s claimed injuries. And, lastly, the nature and extent of Mr. Mullins’ damages.” (Defs.’ Mot. 8:13–16.) The instant motions concern “the following five persons: Maria Berry (WCA Claims Coordinator; Jose M. Chavarria Manzo (Field Supervisor); Heriberto Coronel (Shop Foreman); David Evans (Area Manager, no longer employed by WCA); and Daniel Villa (Field Supervisor).” (Id. at 14:17–20.) Defendants assert that “the testimony of these individuals is pointless in this case as they can offer nothing that bears any relevance to the four issues that remain to be decided by the jury. In other words, the other five persons whose depositions were re-noticed by Mr. Mullins have no knowledge relevant to either liability, causation, or damages.” (Id. at 11:3–6.)

Defendants cite to Armenta v. Churchill (1954) 42 Cal.2d 448, and Diaz v. Carcamo (2011) 51 Cal.4th 1148, in support of Defendants’ argument that “if the employee was acting in the course and scope of his employment, then the employer is vicariously liable for the actions of its employee and there is therefore no basis for establishing direct negligence against the employer.” (Id. at 17:9–11 [emphasis in original].) Specifically, in Diaz, the California Supreme Court opined that if a plaintiff injured by a person driving a car in the course of employment asserts theories of both respondeat superior and negligent entrustment, hiring, or retention against the employer, and the employer admits vicarious liability for any negligent driving by its employee, the plaintiff may not still pursue the negligent entrustment, hiring, or retention claim. (51 Cal.4th at 1152, citing Armenta, 42 Cal.2d at 457–458.) “If, as here, an employer offers to admit vicarious liability for its employee’s negligent driving, then claims against the employer based on theories of negligent entrustment, hiring, or retention become superfluous. To allow such claims in that situation would subject the employer to a share of fault in addition to the share of fault assigned to the employee, for which the employer has already accepted liability.” (Id. at 1160 [emphasis in original].)

In opposition, Plaintiff concedes that he “has since clarified that the information is being sought only to pursue Defendant Priego’s negligence.” (Pl.’s Opp. 2:23–24.) Nevertheless, Plaintiff asserts that the testimony would be relevant because “the purpose of the sought depositions is not to delve into WCA’s broader employment policies, but rather to obtain first-hand knowledge from employees who may have direct insights into the events leading up to and immediately following the crash, and Defendant Priego’s overall compliance with safety standards and his fitness to operate the truck he was driving at the time of the incident.” (Id. at 3:4–8.) Plaintiff argues that “each of these five WCA employees have direct knowledge of Defendant Priego’s complete unfitness and incompetence to operate the truck at the time of the incident.” (Id. at 11:15–16.)

Plaintiff further argues that despite the holdings in Diaz and Armenta, “an employer’s admission of liability does not preclude punitive damages claims related to employer misconduct.” (Id. at 12:16–18, citing CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255.) In CSRT, the Court of Appeal held that “upon a suitable demonstration of employer misconduct, a vicariously liable employer may be subject to an award of punitive damages when an employee was negligent.” (11 Cal.App.5th at 1261.) The CSRT court continued to opine that “because neither Diaz nor Armenta addressed an action in which punitive damages were sought, in each case the employer’s admission of vicarious liability necessarily rendered superfluous any allegations or evidence bearing on the employer’s own misconduct. That is not the case, however, when the plaintiff seeks compensatory damages from the employer on a theory of vicarious liability, and also requests punitive damages from the employer.” (Id. at 1264 [emphasis added].)

To this extent, Plaintiff contends that “the requested testimony is further critical to establish potential punitive damages, for which Plaintiff may seek leave from Court to amend his complaint to add these allegations depending on the outcome of the depositions and address lingering factual disputes.” (Id. at 3:9–11.) “Plaintiff intends to establish that Priego’s conduct was more than just negligent; rather, it demonstrated a severe disregard for the safety of others. … Evidence of such conduct could substantiate claims that Priego’s actions were reckless or exhibited a conscious disregard for safety, thus qualifying for punitive damages. … The depositions of WCA employees who interacted with Priego regularly are crucial to uncovering evidence of this nature, as these individuals possess firsthand knowledge of Priego’s habitual behavior, compliance with safety procedures (or lack thereof), and attitude towards operational protocols.” (Id. at 5:4–10.) Plaintiff therefore maintains that he “has the right to find out exactly how and why Defendant WCA turned a blind eye to Defendant Priego’s blatant inability to safely operate this truck to pursue a potential punitive damages claim.” (Id. at 11:22–24.)

In reply, Defendants argue that “there is no punitive damage claim in this case and there never will be because there is nothing to even suggest recklessness or substance abuse on the part of Mr. Priego or his employer.” (Defs.’ Reply 5:11–13.) Defendants further assert that the CSRT case is inapposite here, as the “opinion says nothing about allowing a plaintiff to engage in a fishing expedition to seek any possible evidence that might support a doubtful claim for punitive damages in a case where no punitive damages have been alleged.” (Id. at 9:8–10 [emphasis added].) Defendants argue that here, unlike in CSRT, “there isn’t a shred of evidence to even suggest recklessness, intoxication, lying on an employment application, termination from prior employment for intoxication or any other indication of behavior on the part of Mr. Priego that might support punitive damages against either WCA or Mr. Priego in this case.” (Id. at 10:6–9.) Defendants further argue that to accept Plaintiff’s argument that the CSRT holding creates an exception to the rule set forth under Diaz and Armenta would imply that “any party could simply get around the Diaz holding simply by claiming that he might find support for a punitive damage claim or by making frivolous punitive damage claims in his complaint.” (Id. at 10:16–18.)

Defendants further argue that even if Court finds testimony regarding Priego’s prior compliance with WCA’s safety protocols to be relevant, this testimony would be inadmissible because “Evidence Code section 1101 specifically excludes character evidence to prove fault on a particular occasion.” (Id. at 5:17–18.) Defendants further argue that the noticed depositions would be fruitless because “the only persons who would have knowledge regarding Jose Priego’s regular driving practices are Alejandro Priego, Clemente Priego, and Francis Malabuyoc. Each of those persons have been deposed.” (Id. at 7:10–12.) The Court agrees with Defendants, and finds that the CSRT exception is inapplicable here, where Plaintiff has not prayed for punitive damages in his complaint. The Court takes note that this case was initiated nearly two years ago, and that discovery efforts have long been underway, and therefore is not persuaded by Plaintiff’s argument that he may, at an unspecified later date, potentially seek leave to add a prayer for punitive damages against Defendants.

Defendants further argue that “there is no basis for taking the deposition of [each deponent] in this case and causing [them] to attend a lengthy deposition so that Plaintiff’s counsel can engage in a fishing expedition is improper, unfair and unduly burdensome both to [the deponents] and to WCA.” (Defs.’ Mot. 15:10–12.) The Court agrees, noting each deponent’s sworn declaration attesting that they do not possess any responsive documents or personal knowledge of the subject incident or Plaintiff’s claimed damages, and that under these circumstances it would cause a substantial hardship for each individual to attend the noticed deposition. (Decl. of David Evans ¶¶ 3–8; Decl. of Heriberto Coronel ¶¶ 3–8; Decl. of Jose M. Chavarria Manzo ¶¶ 3–8; Decl. of Daniel Villa ¶¶ 3–8; Decl. of Maria Berry ¶¶ 3–8.)

Based on the foregoing, the Court finds that the requested testimony and related document productions are not relevant here, where WCA has admitted vicarious liability and Plaintiff does not seek punitive damages against Defendants. The Court further finds that under these circumstances, deposing each of the five noticed individuals would cause undue burden to both the deponents and to counsel. Accordingly, the motions for protective orders are granted.

3.      Sanctions

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2025.420, subd. (h).) Additionally, “the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc. § 2023.030, subd. (a).)

Here, Defendants request monetary sanctions in the amount of $915.00 per motion, totaling $4,575.00, to be imposed against Plaintiff and/or his counsel. While the Court grants the instant motions, it finds the imposition of sanctions to be unjust because each party appears to have substantial justification for making and opposing the motion. Accordingly, the Court declines to issue monetary sanctions against either party.

CONCLUSION

The motions are granted. The Court declines to issue monetary sanctions.