Judge: Anne Hwang, Case: 21STCV03417, Date: 2023-09-19 Tentative Ruling

Case Number: 21STCV03417    Hearing Date: September 19, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On January 28, 2021, Plaintiff Zain Odetallah (Plaintiff) filed an action for negligence and premises liability after allegedly being assaulted by a hired security guard. On May 11, 2023, Plaintiff filed a first amended complaint against Defendants Steven Jagoda Co. Tr.; Justin K. Jagoda; Steven D Co. Tr and Justin Jagoda Trust; and Does 1 to 50, claiming the assault took place on Defendants’ property (“the Property”).

On April 18, 2023 Plaintiff took the deposition of Justin Jagoda (Defendant) and asserts that Defendant improperly refused to answer certain questions about the owners of the property by his counsel’s direction.

Plaintiff now moves to Compel Answers to Questions Not Answered at the April 18, 2023 deposition. Plaintiff also seeks monetary sanctions against Defendant and his attorney of record.

LEGAL STANDARD

Code of Civil Procedure section 2025.480 permits a party to seek a motion to compel deposition answers where a deponent fails to answer any question or produce any document, electronically stored information, or tangible thing under the deponent's control. The court shall order the production or answer be given if it determines that the matter sought is subject to discovery. (Code Civ. Proc. § 2025.480, subd. (i).) The moving party is required to lodge a certified copy of the deposition transcript portions relevant to the motion. (Code Civ. Proc. § 2025.480, subd. (h).) Monetary sanctions are mandatory against an unsuccessful moving or opposing party unless they acted with substantial justification or imposition of sanctions would be unjust. (Code Civ. Proc., section 2025.480, subd. (j).) 

A motion made pursuant to Code Civ. Proc., section 2025.480 must be made no later than 60 days after the completion of the record of the deposition. (Code Civ. Proc., section 2025.480, subd. (b).) 

“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc. section 2025.480, subd. (i).) 

Counsel should not instruct clients not to answer the question unless the purpose is to protect privileged information. (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014.) 

Under Code of Civil Procedure section 2017.020 courts “shall limit the scope of discovery if” the court “determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” A “court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Id.) 

“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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2025.420, subd. (a).) The court, for good cause shown, may make any order “that justice requires” to protect any party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) If “good cause” is shown, the court can exercise its discretionary power to limit discovery.  (See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298-99.) The granting or denial of relief lies within the sound discretion of the judge. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 379-81 (overruled on other grounds pertaining to attorney work product privilege).) The concept of good cause requires a showing of specific facts demonstrating undue burden, unwarranted embarrassment, oppression, or unwarranted annoyance, and justifying the relief sought. (See Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.3d 807, 819.) Unlike other discovery orders, a protective order may be granted simply on the court’s determination that justice so requires. (Greyhound Corp., 56 Cal.2d at pp. 379-81.) 

Under Article I section 1 of the California Constitution, California recognizes a constitutional right to privacy. This right “protects an individual’s reasonable expectation of privacy against a serious invasion.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 171.) Under California law, even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s inalienable right to privacy. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 855–56.) The right to privacy protects the individual’s reasonable expectation of privacy against a serious invasion. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) When evaluating invasions of the right to privacy in discovery, the party asserting a privacy right must establish “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 26 Cal.Rptr.2d 834, 865.) Where privacy interests are concerned, the Court is required to engage in a careful balancing of the right to privacy against the need for discovery. Disclosure may be ordered if a compelling public interest would be served. (Britt, supra, 20 Cal.3d at p. 855–56.) 

MEET AND CONFER

A meet and confer declaration is required, stating facts that a reasonable and good faith attempt was made to resolve the issues in this motion. (Code Civ. Proc. §§ 2025.480 (b), 2016.040.) Although the parties should have discussed the matter by telephone or in person, for purposes of this motion, Plaintiff satisfies the meet and confer requirement. (Donabedian Decl. ¶ 8, 9.)

DISCUSSION

Plaintiff asserts that Defendant has testified he is the owner of the Property. However, Plaintiff argues there is evidence the Property is also co-owned by other defendants in this action: Steven Jagoda (Defendant’s father), and the Steven Jagoda Co Tr, Justin Jagoda Tr trust (“the Trust”). During the deposition, Plaintiff’s counsel attempted to ask Defendant where his father, Steven Jagoda, lived, if he knew his address, and if his father was aware of the incident. Defendant’s counsel objected that the question violated the father’s right to privacy.

Next, Plaintiff asked if his father, Steven Jagoda, owned the property. Plaintiff showed Defendant a copy of a document that purportedly showed the property was owned by “Jagoda, Steven D. Co Tr and Justin K Jagoda Trust.” (Donabedian Decl., Exh. B, 35:6–8.) Defendant responded: “No that isn’t the owner.” (Exh. 35:9.)  However Defendant’s counsel objected that the question violated his right of privacy and Civil Code section 3295(c). (Exh. 35:18–19.)

In opposition, Defendant argues the questions about Steven Jagoda were improper since Jagoda, who is not represented by counsel, is not named in this case in his individual capacity.

Defendant argues it was proper to assert the privacy right of a third party. A party can assert the privacy rights of a third-party, but before the court can compel a disclosure, they must allow the third-party an opportunity to present their views. (Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1520.) Here, there is no evidence that Steven Jagoda was given an opportunity to present his views on the matter. Additionally, according to the first amended complaint, Jagoda is not sued in an individual capacity, but rather as “Steven Jagoda Co Tr.” Therefore, Plaintiff’s motion to compel as to particular questions regarding Steven Jagoda is denied.

            Next, Defendant argues that questions relating to the trust implicates privacy concerns set forth in Probate Code section 18100.5. Plaintiff argues that questions related to the trust are meant to discover who is the owner of the residence where the incident took place and where Defendant lived at the time of the incident. The Court agrees with Plaintiff that such information is reasonably calculated to lead to the discovery of admissible evidence, particularly as it relates to determining the proper parties to this action. Defendant has failed to establish how these questions infringe on a right to privacy. Accordingly, Plaintiff’s motion to compel as to particular questions regarding the trust is granted.

            Plaintiff seeks sanctions for $4,561.65. However, as there was at least substantial justification for the opposition regarding questions relating to Steven Jagoda, the Court denies the request for sanctions.

CONCLUSION AND ORDER

Plaintiff’s motion to compel answers from Defendant’s deposition is GRANTED in part and DENIED in part. Plaintiff’s motion for sanctions is DENIED.

Plaintiff shall give notice of the Court’s order and shall file a proof of service of such.