Judge Anne Hwang, Case Number: 22STCV25112, Date: 2024-09-16 Tentative Ruling

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.

On August 4, 2022, Plaintiff Wayne Johansson (“Plaintiff”) filed a complaint against Defendants Ze’ev Patrick Waismann and Does 1 to 50 for negligence and strict liability related to an alleged dog attack on August 23, 2021.

On June 27, 2023, Plaintiff filed the operative first amended complaint (“FAC”) against Ze’ev Patrick Waismann, San Gabriel Valley Humane Society, and Does 1 to 50. Plaintiff alleges that Ze’ev Patrick Waismann (“Waismann”) adopted the subject dog, “Gus”, from the San Gabriel Valley Humane Society. (FAC ¶ 11.)

On April 29, 2024, Defendant San Gabriel Valley Humane Society (“SGVHS”) filed a motion for a protective order and the appointment of a discovery referee. Plaintiff and Waismann have filed separate oppositions. SGVHS replies.[1]

The hearing for this motion was originally scheduled for May 28, 2024. On May 30, 2024, the Court heard oral argument. After conferring with the parties, pursuant to oral stipulation, the Court continued this motion to July 29, 2024. (Min. Order, 5/30/24.) The parties were ordered to meet and confer regarding issues addressed in the pending motions. The Court further ordered: “[t]he stay on discovery will remain stayed except for set three (3) of responses as to Waismann. Any undisputed discovery may go forward.” (Ibid.) The parties were ordered to file a joint statement on outstanding issues five court days prior to the continued motion hearings.

In the interim, this case was transferred to this department. On July 24, 2024, Plaintiff filed a joint statement. On July 29, 2024, the matter was called for hearing and the Court instructed the parties to lodge electronic copies of the transcript of the prior hearing. The Court has reviewed the transcript of the May 28, 2024 hearing.

Under Code of Civil Procedure section 2017.020, a court 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.)¿The “motion shall be accompanied by a meet and confer declaration.” (Id.)¿

Similarly, courts must restrict the frequency or extent of a discovery method such as interrogatories or inspection of documents if it determines either of the following:

“(1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.

(2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” (Code Civ. Proc. § 2019.030.) This can be done by moving for a protective order.

Regarding interrogatories, the protective order may include, but it not limited to, one or more of the following directions: “(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered. (2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted. . . .” (Code Civ. Proc., § 2030.090, subd. (b).)

“If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.” (Code Civ. Proc., § 2030.040, subd. (b).)

If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just. (Code Civ. Proc., § 2030.090, subd. (c).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, 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., § 2030.090, subd. (d).)

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., 2031.060, subd. (a).)

“The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: (1) That all or some of the items or categories of items in the demand need not be produced or made available at all. . . .” (Code Civ. Proc., 2031.060, subd. (b).)

“The party or affected person who seeks a protective order regarding the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.” (Code Civ. Proc., 2031.060, subd. (c).)

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., 2031.060, subd. (h).)

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(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. (Code Civ. Proc. § 2025.420(b).)

Under Code of Civil Procedure section 638, “[a] referee may be appointed upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes, or upon the motion of a party to a written contract or lease that provides that any controversy arising therefrom shall be heard by a referee if the court finds a reference agreement exists between the parties:

(a) To hear and determine any or all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision.

(b) To ascertain a fact necessary to enable the court to determine an action or proceeding.”

“The court shall appoint as referee or referees the person or persons, not exceeding three, agreed upon by the parties.” (Code Civ. Proc., § 640, subd. (a).)

(a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640:¿¿

(5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.¿

(d) All appointments of referees pursuant to this section shall be by written order and shall include the following:¿

(2) When the referee is appointed pursuant to paragraph (5) of subdivision (a), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.¿

(5) The maximum hourly rate the referee may charge and, at the request of any party, the maximum number of hours for which the referee may charge. Upon the written application of any party or the referee, the court may, for good cause shown, modify the maximum number of hours subject to any findings as set forth in paragraph (6).

(6)(A) Either a finding that no party has established an economic inability to pay a pro rata share of the referee's fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee's fees and that another party has agreed voluntarily to pay that additional share of the referee's fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made.

(B) In determining whether a party has established an inability to pay the referee's fees under subparagraph (A), the court shall consider only the ability of the party, not the party's counsel, to pay these fees. If a party is proceeding in forma pauperis, the party shall be deemed by the court to have an economic inability to pay the referee's fees. However, a determination of economic inability to pay the fees shall not be limited to parties that proceed in forma pauperis. For those parties who are not proceeding in forma pauperis, the court, in determining whether a party has established an inability to pay the fees, shall consider, among other things, the estimated cost of the referral and the impact of the proposed fees on the party's ability to proceed with the litigation.

Such an appointment is authorized only where necessary, and it is improper to issue a blanket order directing any and all discovery motions to a referee for routine matters.¿ (See Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449 fn. 4.)¿ An appointment is justified only where the majority of factors justifying reference, including that “(1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.”¿ (See Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 104-05; see also Cal. Rules Court, Rule 3.920(c) [“A discovery referee must not be appointed … unless the exceptional circumstances of the particular case require the appointment”].)¿ “Where one or more of the above factors unduly impact the court’s time and/or limited resources, the court is clearly within its discretion to make an appropriate reference.”¿ (Taggares, supra, 62 Cal.App.4th at 106.)¿ There is no “necessity” for appointment of discovery referees in routine, pro forma, uncomplicated matters.¿ (Taggares, supra, 62 Cal.App.4th at 104 [criticizing appointments “simply for expediency or a distaste for discovery resolution”]; Hood, supra, 72 Cal.App.4th at 449.)¿¿

The Court grants SGVHS’s request for judicial notice of the IDC form file April 26, 2024. (Evid. Code, § 452, subd. (d).)

The Court previously continued this motion so the parties could meet and confer and file a joint statement on unresolved issues. (Min. Order, 5/30/24.) The parties have completed this.

This motion for a protective order was filed based on purported conduct by Plaintiff’s counsel at SGVHS PMK’s deposition, and the number of discovery requests propounded by Plaintiff. Additionally, SGVHS contends Waismann has also propounded multiple discovery sets and is seeking to depose SGVHS’s former employees and its custodian of records. SGVHS argues this conduct is overly burdensome and harassing. SGVHS further seeks a court-appointed discovery referee.[2]

According to the joint statement filed July 24, 2024, the issues of preventing the production of the employee handbook in response to Plaintiff’s Request for Production, Set Three, numbers 48 to 51, and the deposition of Tom Anguiano, are resolved. (Joint Statement ¶ 6.) The Court will now address the issues that are still unresolved, according to the joint statement.

SGVHS contends that the parties have conducted eleven depositions (two of Plaintiff, two of Waismann, five percipient witnesses (Waismann’s dog sitter, Waismann’s former tenant and neighbor, an SGVHS former employee, two current employees), Waismann’s treating physician, and SGVHS’s PMK. On February 7, 2024, Plaintiff served eleven deposition notices, Special Interrogatories, Set Two (numbers 51-77), Request for Production, Set Two (requests 42-45), and Request for Production, Set Three (requests 46-79). (Angelo Decl. ¶ 1, Exh. B.) On April 25, 2024, SGVHS provided supplemental responses to this written discovery. (Id. ¶ 2, Exh. C.)

On March 18, 2024, Waismann propounded Set Three of Request for Production (requests 39-58) and Special Interrogatories (numbers 54-95). (Angelo Decl. ¶ 3, Exh. D.) SGVHS contends the information requested is duplicative of the discovery that SGVHS already answered in Plaintiff’s discovery sets.

SGVHS generally argues that this case is a simple dog bite case, with a damages value of under $50,000. Therefore, discovery propounded is not warranted. In opposition, Plaintiff argues that SGVHS is liable since it failed to disclose to Waismann that the subject dog had violent propensities. As a result, Plaintiff and Waismann argue that SGVHS breached a duty when it allowed Waismann to adopt the dog. (Pl. Opp., 4.)

SGVHS contends it produced its PMK, Cynthia Rigney (“Rigney”) for deposition to Waismann on February 5, 2024. The notice of deposition contained 36 topics that were not objected to. (Angelo Decl. ¶ 10, Exh, E.) The topics included information on the subject dog and Waismann, as well as general policies and procedures. After Waismann’s counsel asked questions, Plaintiff’s counsel began questioning Rigney at 2:38 p.m. (Id. ¶ 12, Exh. F [transcript of excerpts of deposition].) After Plaintiff’s counsel began asking questions outside the scope of topics in the deposition notice (which Plaintiff did not serve), SGVHS objected, but allowed Ms. Rigney to respond if she knew. The excerpted transcripts provided show that Plaintiff was asking about the average number of dogs SGVHS had, whether the staff were certified dog trainers, or about the subject dog’s previous owner who did not have a dog license. (Exh. F, 140:9-11, 188:2, 189:16-19.) After this continued, SGVHS moved to strike the line of questioning. The deposition proceeded until around 4:15 p.m., when SGVHS ended the deposition. (Angelo Decl. ¶ 14-15.) SGVHS argues this line of questioning was done to harass the witness.

It appears that after this, Plaintiff served his own notice to depose Rigney, in her capacity as PMK and individually.

According to the joint statement, SGVHS “will agree to produce Rigney for deposition so long as her deposition is limited in time (3 hours) and scope (declaration in support of MSJ, policies and procedures produced at J. Martinez deposition and identification of prior employees noted on client produced document), as she was already deposed for 6 hours by both Plaintiff and co-defendant.” (Joint Statement ¶ 1.) In contrast, Plaintiff seeks to question Rigney on the same 36 topics that were in Waismann’s deposition notice, for up to five hours. (Ibid.)

Given that Plaintiff was served with the deposition notice, and apparently questioned Rigney during the February 5, 2024 about some topics within that deposition notice, any additional deposition on those same topics already addressed would be unduly burdensome. (See, e.g., Code of Civ. Proc. § 2025.610(a).) However, the Court would permit Plaintiff to depose Rigney as PMQ and in her individual capacity on topics/ questions not already covered,[3] and on topics/ questions in Waismann’s deposition notice that were not covered by Plaintiff because SGVHS suspended the deposition. The Court limits the time of this deposition to 4 hours.[4]

According to the joint statement, both SGVHS and Plaintiff agree to utilize a discovery referee for this deposition and to split the costs. (Joint Statement ¶ 1.) As a result, the parties may file a stipulation under California Rules of Court, rules 3.901, 3.902. (See also Code Civ. Proc., § 638.) The discovery referee can monitor the deposition and make sure the questions/topics covered are not duplicative.

As for Plaintiff’s Special interrogatories, numbers 57-65 which request contact information of SGVHS’s former employees, Sara, Hannah, and Ariana, SGVHS asserts it will produce that information if the deposition of Rigney goes forward with the given limitations. (Joint Statement ¶ 5.) As stated in the separate ruling for the motion to compel, SGVHS previously agreed to supply this information. Therefore, the protective order is denied as to this request.

As for Plaintiff’s Request for Production, Set Three, numbers 47, 52, 57, and 60-75 (Joint Statement ¶ 7), Plaintiff has not provided the date of the verified responses.

In the Joint Statement, SGVHS argues that Plaintiff has waived his right to file a motion to compel further responses, and that it has produced all documents available in this case. (Joint Statement ¶ 7.) Unless notice of a motion to compel further requests for production is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.¿ (Code Civ. Proc., § 2031.310(c).)¿¿This deadline is jurisdictional, and courts are without authority to grant untimely motions.¿ (Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685.)¿

Since the date of verified responses has not been provided, no motion to compel further or separate statement has been filed, the Court will not compel responses.

To the extent there are further discovery disputes not addressed in this order, those matters may be referred to the discovery referee.[5]

Therefore, the Court GRANTS in part Defendant San Gabriel Valley Humane Society’s motion for a protective order. The parties shall file a stipulation for a discovery referee within five days.

On February 7, 2024, Plaintiff Wayne Johansson (“Plaintiff”) served deposition notices on Defendant San Gabriel Valley Humane Society (“SGVHS”) for various witnesses. (Aliav Decl. ¶ 3.)

Plaintiff seeks to compel depositions of Cynthia Rigney, in her individual capacity and capacity as the PMK; a PMK for new categories; employee Tom Anguiano; and its custodian of records. Plaintiff also seeks monetary sanctions. SGVHS opposes and Plaintiff replies.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).)

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc. § 2025.230.)

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. (Code Civ. Proc., § 2025.410, subd. (c).)

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)If a motion is granted, the court shall impose a monetary sanction in favor of that party unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the sanction unjust. (Code Civ. Proc. § 2025.450 (g).

The Court previously continued this motion so the parties could meet and confer and file a joint statement on unresolved issues. (Min. Order, 5/30/24.) The parties have completed this.

First, Plaintiff admits that SGVHS served objections to the deposition notices but failed to provide alternative dates. (Aliav Decl. ¶ 3, Exh. 4.) Plaintiff argues the depositions are necessary to oppose a summary judgment motion and prepare for trial. (Motion, 2.)

In light of the Court’s ruling on SGVHS’s motion for protective order, the motion to compel is granted in part as to the deposition of Rigney as PMQ, custodian, and individually. The depositions shall be subject to the limitations described in the order granting in part the motion for protective order. Additionally, the motion to compel the custodian of records to produce unredacted documents containing the contact information of the two prior owners of the subject dog is granted. It does not appear that SGVHS has objected to this in its discovery responses and SGVHS does not explain any objections in its original opposition to the motion. To the extent there are privacy objections, they are outweighed by the interest in favor of disclosure. (Williams v. Superior Court (2017) 3 Cal.5th 531, 533.) The Court would consider a protective order if necessary.

As for the last known contact information of SGVHS’s former employees Sara, Hannah, and Ariana (Joint Statement ¶ 5), in its original opposition, SGVHS asserted this will be provided before the hearing. (Opp., 11, Angelo Decl. ¶ 20.) Given this agreement, SGVHS should supply the information.

Accordingly, Plaintiff’s motion to compel Defendant’s San Gabirel Valley Humane Society to Produce Deponents for Deposition is GRANTED in part.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.

[1] On April 11, 2024, Plaintiff filed a Motion to Compel SGVHS to Produce Deponents for Deposition and to Produce Documents at Deposition, which was continued in conjunction with the instant motion. That motion seeks to compel depositions of SGVHS’s person most knowledgeable (“PMK”); Cynthia Rigney, in her individual capacity and capacity as the PMK; employee Tom Anguiano; and its custodian of records. Plaintiff also seeks the contact information of four former employees in order to depose them as well. The Court will address that motion in the subsequent order.

[2] SGVHS seeks the referee to: “(1) hear and determine all pending and future discovery motions and disputes between the parties relevant to determine all pending and future discovery motions and disputes between the parties relevant to written and deposition discovery including, but not limited to, any disputes pertaining to imposition of sanctions, and to report findings and make recommendations thereon to the Court; (2) authorize the appointed Referee to file reports and recommendations with the Court on any discovery motions or other discovery matters heard and determined by such referee; and (3) apportion the compensation of the appointed referee and the allocation of the referee’s charges among Plaintiff and Waismann.” (Motion, 2.)

[3] The Court notes that SGVHS did not object to the topics in Plaintiff’s non-duplicative notice of PMQ deposition.

[4] However, to the extent that the parties utilize a discovery referee, this order does not bind any subsequent findings by the referee.

[5] The Joint Statement is not clear whether the other issues regarding the number of interrogatories and requests for production of documents has been resolved. The Court notes generally that the Declaration of Alexandra Soltis has set forth a sufficient basis to justify the discovery propounded by Waismann. The declaration of Alon Aliav, however, does not justify the number of discovery requests propounded by Plaintiff. On the other hand, other than the number of interrogatories (of which Plaintiff bears the burden to justify pursuant to Code of Civil Procedure § 2030.040, subd. (b)), the Court does not find that Defendant has sufficiently established the justification for a protective order regarding the number of requests for production by Plaintiff. To the extent the parties utilize a discovery referee, the parties can provide additional information to the referee as to any remaining issues not addressed in the Joint Statement.

DEPT:	32
HEARING DATE:	September 16, 2024
CASE NUMBER:	22STCV25112
MOTIONS:	Motion for Protective Order
MOVING PARTY:	Defendant San Gabriel Valley Humane Society
OPPOSING PARTY:	Plaintiff Wayne Johansson and Defendant Ze’ev Patrick Waismann

DEPT:	32
HEARING DATE:	September 16, 2024
CASE NUMBER:	22STCV25112
MOTIONS:	Motion to Compel Defendant’s San Gabirel Valley Humane Society to Produce Deponents for Deposition
MOVING PARTY:	Plaintiff Wayne Johansson
OPPOSING PARTY:	Defendant San Gabriel Valley Humane Society