Judge: Anne Richardson, Case: 22STCV37075, Date: 2024-07-16 Tentative Ruling

Case Number: 22STCV37075    Hearing Date: July 16, 2024    Dept: 40

       Superior Court of California

County of Los Angeles

Department 40

On November 23, 2022, Plaintiff Maria Chavez (“Chavez”) brought the underlying action against Defendant City of Montebello (“Montebello” or “City”); Defendant Nicholas Razo (“Razo”), City Montebello’s former Director of Human Resources; and Rene Bobadilla (“Bobadilla”), former City Manager (collectively, “Defendants”) for the following four causes of action relating to the termination of Plaintiff Chavez from her position as detective from the Montebello Police Department during the COVID-19 pandemic: (1) gender discrimination—failure to promote; (2) gender discrimination—wrongful termination; (3) failure to accommodate a religious belief; and (4) hostile work environment. Only the fourth cause of action in Plaintiff’s complaint for hostile work environment is asserted against Razo and Bobadilla.

Defendant Montebello now moves the Court for issuance of a Protective Order which Plaintiff Chavez opposed on July 1, 2024, and to which Defendant Montebello replied on July 10, 2024. 

Background Allegations

On February 28, 2023, this Court issued a Minute Order (“February 28 Minute Order”), sustaining Defendant Montebello’s demurrer as to Plaintiff’s third cause of action for failure to accommodate a religious belief while granting Plaintiff leave to amend.

Accordingly, on March 10, 2023, Plaintiff Chavez filed a First Amended Complaint (“FAC”) which is now the operative complaint, for religious discrimination in violation of FEHA with respect to Defendant Montebello’s 2021 vaccine mandate during the COVID pandemic. The FAC alleged that Montebello failed to provide identifiable and reasonable religious accommodations. Defendant Montebello did not subsequently demur to the amended cause of action for religious discrimination but did file a second demurrer as to Bobadilla’s individual liability for the hostile work environment claim. Plaintiff did not amend as to Bobadilla. The Court overruled Defendant Razo’s demurrer with respect to Razo’s individual liability on the hostile work environment claim. Discovery then commenced thereafter.

On May 15, 2024, Defendant Montebello filed an Amended Motion for Issuance of Court Protective Order under Code of Civil Procedure Section 2025.420 to Preclude or Limit Witness Depositions Related to Dismissed Claims/Causes of Action, along with a Memorandum of Authorities (“Mot.”), the Declaration of Defendant’s attorney of record, Nancy Doumanian with Exhibits (“Doumanian Decl.”), and an Amended Proposed Order.

Plaintiff Chavez filed her Opposition (“Opp.”) on July 1, 2024, along with the Declaration of Paul M. Mahoney (“Mahoney Decl.”). 

On July 10, 2024, Defendant Montebello filed its Reply, along with the second Declaration of Nancy Doumanian (“Supp. Decl.”).

            On July 11, 2024, Mayor Scarlet Peralta filed a joinder to the motion for protective order, and on July 12, 2024, Plaintiff filed an Opposition to that joinder.

Motion

Legal Standard

“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.” (CCP § 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.” (CCP § 2025.420(b).) This protective order may include, but is not limited to, one or more of the following directions set forth in CCP §§ 2025.420(b)(1)-(16). “Code of Civil Procedure section 2025.420, subdivision (b), provides a nonexclusive list of permissible directions that may be included in a protective order.” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316.)

“If the motion for a protective order is denied in whole or in part, the court may order that the deponent provide or permit the discovery against which protection was sought on those terms and conditions that are just.” (CCP § 2025.420(g).) “ ‘[T]he issuance and formulation of protective orders are to a large extent discretionary. [Citation.]’ ” (Nativi, supra, 223 Cal.App.4th at 316.)

“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.” (CCP § 2025.420(h).)

Discussion

Defendant Montebello brings the instant and amended motion for Protective Order to preclude or limit discovery to include (1) an order to preclude the deposition of Former Mayor Kimberly Ann Cobos Cawthorne; and (2) an order to preclude the deposition of Current and Former Police Officers, Andrew Fivecoat, Eric Alvarez, Michael Vasquez, Ramon Alatore, Robert Josett, Trevor Goetz, Christopher Tyni, Ryan Saldivar, Joshua Colbert, and Omar Rodriguez (collectively “Police Officers”). (Mot., p. 2.) Defendant Montebello requests this order to preclude the depositions of persons who have “no rational or logical connection to any of the allegations in the underlying lawsuit.” (Id. at p. 3.)

Defendant states that during the Pandemic, Montebello issued a vaccine mandate requiring all employees, including police officers, to present proof of vaccination. (Id.) Given that Plaintiff declined to do so and was subsequently denied a religious exemption, Plaintiff was consequently terminated from the City in compliance with the City’s vaccine mandate. (Id.) Defendant asserts that the mandate followed the enactment of Governor Newsom’s executive order at the time to all public employers, mandating that public entity employees, including police and fire personnel, be vaccinated considering the growing health and safety concerns of the Pandemic. (Id.)

The ten current and former Police Officers were identified by Plaintiff at her deposition as being witnesses related to the City’s vaccine mandate and Plaintiff alleges that their requests for exemption were approved while her request for exemption, which cited to religious beliefs, was denied. However, Defendant argues that the Police Officers should be precluded from deposition on the basis that (1) Defendant did not identify any of the foregoing as witnesses, having any relevance to the case at bar; and (2) Plaintiff did not identify any of the foregoing as witnesses to any of her gender-based discrimination claims against Defendant. (Mot., p. 4.) Defendant contends that because “the Court sustained the demurrer as to the third cause of action for failure to accommodate without leave to amend,” these Police Officers would have nothing relevant to say that is reasonably calculated to lead to the discovery of admissible information in this lawsuit. (Id. at pp. 4-5.) Defendant argues that insisting on numerous depositions of persons whose sphere of knowledge relates to a dismissed COVID cause of action following demurrer is a misuse of the civil discovery process per CCP 2023.010, and thus, none of these depositions should be allowed. (Id. at p. 7.) Moreover, such depositions would be burdensome, oppressive, and harassing to the City, its police officers, and residents in the community who count on the officers to keep the City safe. (Id. at p. 5.)

In Opposition, Plaintiff asserts that Defendant has misrepresented the procedural facts and legal history of the instant case because this Court did not dismiss Plaintiff’s Chavez’s COVID-related claim (third cause of action). (Opp., p. 2.) To the contrary, this Court granted leave to amend and Chavez thereafter amended her third cause of action which remains a viable claim that is maintained presently before this Court in the FAC. (Id.) Thus, Plaintiff Chavez contends that Defendant’s misrepresentations constitute discovery abuse which the Court should use its inherent authority to sanction Defendant for. (Id.) Moreover, Plaintiff asserts that when Defendant deposed Plaintiff Chavez, Chavez provided the names of the Police Officers because not only were they male officers who were granted religious exemptions, but they also were witnesses to the derogatory language alleged by Chavez in the complaint. (Id. at p. 3.) Thus, Plaintiff noticed the depositions of those same officers because they are essential witnesses to establishing Chavez’s claims that she was treated differently than her male counterparts. Plaintiff also argues that defense Counsel asked Plaintiff Chavez numerous questions about her COVID claims during her deposition on November 7, 2023. (See Mahoney Decl.)

Plaintiff further argues that Montebello’s motion is erroneously based on the factual and procedural history of another case, Ramirez v. Montebello (22STCV37075), which was previously before Judge Stern who has since retired. (Id. at p. 4. [Ramirez is now before the Honorable Steve Cochran in Department 16.] Id.) Thus, Plaintiff argues that Defendant has failed to establish good cause for their Motion for Protective Order, as the procedural posture of Ramirez is not binding on this Court and Plaintiff is entitled to obtain relevant discovery concerning the instant matter that is not privileged. (Id.) Moreover, Defendant’s allegations mentioning the terms “burden,” “privilege,” and “closed door meetings” are unsubstantiated and accordingly, fail to establish good cause.

With respect to Kimberly Cobos-Cawthorne, as Montebello’s former mayor, Cawthorne admits to having knowledge of and participating in a City policy that directly impacted Plaintiff Chavez. (Id. at p. 7.) Thus, her testimony is relevant to her understanding of the policy goals of the mandate and how such goals could be accomplished without compromising constitutional rights of the Montebello workforce. (Id. at p. 7.) Significantly, neither Razo nor Bobadilla are still employed by Defendant Montebello. (Id. at p. 8.)

Last, Plaintiff requests sanctions be awarded in the amount of $1,200 for three hours of work at the hourly rate of $400. (Id. at p. 9; Mahoney Decl., Ex. B.) Plaintiff requests such sanctions be awarded against Montebello and its attorney of record, Counsel Doumanian because CCP 2025.420(d) provides that sanctions are awarded to a party who successfully opposes a motion for protective order, absent the non-prevailing party acted with substantial justification. (CCP § 2025.420(d).) Moreover, Plaintiff contends that Defendant and its attorneys deliberately misled the court or negligently confused the Court in conflating the Chavez matter with Ramirez and by representing that plaintiff Ramirez decided not to appeal Judge Stern’s ruling on his COVID-related claim when Ramirez cannot appeal such a judgment until a final judgment is rendered on the entirety of the action. Thus, Defendant violated Rule 3.3 of Candor Toward the Tribunal which provides that “A lawyer shall not: (1) knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”  

Here, in Defendant’s Reply and in Counsel Doumanian’s Supplemental Declaration, Doumanian admits she was mistaken as to her recollection of the Court’s ruling on the City’s February 28, 2023 demurrer and mistakenly recalled the Court had sustained the claim without leave to amend until learning otherwise through reading Plaintiff’s Opposition. (Supplemental Decl., ¶¶ 3-4, Ex. B.) Doumanian also declares that she was in the middle of a family medical crisis involving her son at the time that the Court ruled on the February 28, 2023 demurrer, so her recollection of the law and motion history of this case was mistaken. (Id. at ¶ 5.) Counsel will disclose the details of these circumstances if the Court so requests so. (Id.) Moreover, Counsel Doumanian apologizes to the Court for her mistake and acknowledges that this Court sustained Defendant’s demurrer with leave to amend. (Id. at ¶3.)

Nevertheless, Defendant states that such mistake and inadvertence does not change its position that the depositions sought by Plaintiff are properly the subject of this motion for protective order. (Reply, p. 4.) Defendant asserts that Plaintiff offers no legal argument or cites to case law that would support the depositions Plaintiff seeks. Additionally, Plaintiff requests the Court defer ruling on the instant Motion for Protective Order until after the Court rules on the Motion for Judgment on the Pleadings as to the third cause of action for failure to accommodate noticed which is scheduled to be heard on October 17, 2024.

The Court notes that since there is a jury trial in this case set for September 17, 2024, it cannot defer the ruling of the instant motion until October 17, 2024. Although the Court accepts Defendant’s declaration of mistake and acknowledges Counsel Doumanian’s representations that she did not intend to mislead the Court as to the instant matter’s procedural posture, the Court finds Defendant’s moving papers heavily reliant on Defendant’s erroneous recollection of the Court’s February 28 demurrer. Thus, Defendant’s motion relies primarily on the legal argument that the Police Officers should be precluded from deposition on the grounds that no COVID-related claim, or third cause of action, remained. Consequently, Defendant has failed to establish that good cause exists to warrant this Court’s issuance of a Protective Order as the Police Officers. Defendant’s arguments in reply are insufficient to demonstrate that the Police Officers are not relevant to Plaintiff’s claims for both gender discrimination and failure to accommodate Plaintiff’s religious position. Moreover, Defendant did depose Plaintiff on such COVID related matters.

With respect to former mayor Kimberly Cobos-Cawthorne, the Court finds that Defendant has established good cause to preclude her from deposition, as her role in Defendant’s 2021 vaccine mandate is not relevant to the determination of whether Defendant failed to accommodate Plaintiff Chavez on the basis of her religion. Cawthorne’s role in implementing a policy that directly impacted Plaintiff is distinguished from whether Defendant implemented that policy in a discriminatory matter. Thus, the Court reiterates its findings issued in the February 28 Minute Order and again concludes that the question before the Court is not the efficacy or soundness of the vaccine mandate but whether Defendant failed to accommodate Plaintiff’s bona fide religious beliefs in denying her exemption to the City’s vaccine mandate.  

With respect to the joinder of Mayor Scarlet Peralta, filed four court days before the date of the hearing, Mayor Peralta requests to be included in the defendant’s motion for protective order. No argument is provided explaining the basis for her inclusion and no facts are set forth, other than the single sentence: “The defendant asks the court to include Mayor Scarlet Peralta’s unilaterally noticed deposition with request for production of documents in relation to COVID claims, set for August 14, 2024 at 10 AM, within the scope of the defendant’s motion for a protective order.” No facts or argument are contained in the earlier motion regarding Mayor Peralta.

In opposition, Plaintiff argues that there is no basis to continue to prosecute this motion for protective order since it is based on Defendant’s counsel’s incorrect recollection.

The Court denies Defendant’s  requested joinder of Mayor Peralta to the motion both because it is very late and because it provides no substantive argument, particularly in light of the fact that Montebello’s counsel now acknowledges that she confused the two cases.

Therefore, the Court denies Defendant’s Protective Order with respect to the Police Officers named herein and grants the Protective Order as to former mayor Kimberly Cobos-Cawthorne only.

With respect to sanctions, the Court finds there is a mixed result. The Court is granting Defendant’s Protective Order in part as to one of the witnesses, but denying the motion for protective order as to the depositions of the Police Officers. Moreover, Defendant did not act with substantial justification with respect to the Police Officers and did misrepresent the facts to the Court, regardless of intention. While the Court acknowledges Defense Counsel’s ownership in the Reply of such misrepresentations, the Court still finds this motion necessitated Plaintiff’s time and work in opposing the misrepresentations. Significantly, even after learning of the mistake, the Defendant did not withdraw the motion or seek to change the analysis of why the protective order should be granted, other than asking the Court to wait until after the trial date to rule on this motion.

While Plaintiff’s counsel’s time spent of three hours at the hourly rate of $1,200 is reasonable, because of the mixed result, the Court will reduce this amount to $800 against Defendant and Defense Counsel.

Conclusion

The Court GRANTS Defendant’s Protective Order IN PART, as to former Mayor Kimberly Cobos-Cawthorne and DENIES Defendant’s Protective Order as to the Police Officers named herein.

Sanctions are awarded in the amount of $800 against Defendant and Defendant’s attorney of record to be paid to Plaintiff’s counsel within 30 days.