Judge: Audra Mori, Case: BC656364, Date: 2022-07-26 Tentative Ruling

Case Number: BC656364    Hearing Date: July 26, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

On April 4, 2017, Plaintiffs, Armando Japa Cabanlit, Patricia Nathali, Ethan Cabanlit, a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc., XPO Logistics Freight (“XPO”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer that occurred on or about September 1, 2015.  XPO Logistics and Hernandez have filed a First Amended Cross-Complaint against Union Pacific Railroad Company (“Union Pacific”) alleging causes of action for equitable indemnity and contribution. 

Plaintiffs provide that on June 21, 2022, XPO and Hernandez issued a deposition notice for Armando Japa Cabanlit’s (“Armando”) ex-wife, Debbie Allida (“Allida”), setting Allida’s deposition for July 23, 2022.  Plaintiffs state that Union Pacific then served a joiner to the deposition notice of Allida. 

At this time, Plaintiffs move to quash the subpoenaed deposition of non-party Allida, or alternatively, for a protective order precluding the deposition from going forward.  Union Pacific and XPO and Hernandez each oppose the motion.  Plaintiffs filed a reply.

2. Motion for Protective Order

a. Meet and Confer

CCP § 2025.420(a) states that “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.”

In this case, Plaintiffs, through counsel, asserts they attempted to resolve this matter without the court intervention.  (Mot. Lincors Decl. ¶¶ 4-9.)  The court finds this is sufficient to satisfy CCP § 2025.420(a). 

b. Analysis

CCP § 2025.010 provides, “[a]ny party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action.”  (Emphasis added.) 

Pursuant to CCP § 2025.420(b), “[t]he 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. This protective order may include, but is not limited to, one or more of the following directions:”

(1) That the deposition not be taken at all.

(2) That the deposition be taken at a different time.

…

(5) That the deposition be taken only on certain specified terms and conditions.

            Furthermore, CCP § 2017.020(a) states “[t]he court shall limit the scope of discovery if it 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. The court may make this determination pursuant to a motion for protective order by a party or other affected person.” 

“Unless otherwise limited by order of the court in accordance with [the discovery statutes], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action....”  (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.)  “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.”  (Id. at 1013.)  “Moreover, even were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition.”  (Id. at 1014.) 

            Here, Plaintiffs assert that Allida is Armando’s ex-wife, from whom he has been divorced for eight years before the accident.  Plaintiff state that Armando has had no contact with Allida since their divorce, and Plaintiffs contend the deposition subpoena is a fishing expedition to harass, annoy, and embarrass Plaintiffs.  Plaintiffs contend that Allida has no information relevant to any claims or defenses in this action, or any information about Plaintiffs’ injuries or conditions prior to the incident.  Plaintiffs aver that Defendants can offer no explanation for why Allida should be deposed. 

            Union Pacific, in opposition, provides that it believes that Plaintiffs will offer evidence in the form of testimony from family and friends to describe Armando’s changed mood in support of his traumatic brain injury (“TBI”) claim.  Union Pacific asserts that it intends to depose Allida as to his mood. memory, and temperament during her relationship with Armando prior to the incident.  Union Pacific argues the probative value of the testimony outweighs any claimed prejudice by Plaintiffs.  

            XPO and Hernandez, in their own opposition, further assert they are entitled to take Allida’s deposition in order to obtain evidence to defend against Armando’s TBI claims.  XPO and Hernandez provide that Allida is cooperative and willing to testify, and that Plaintiffs do not provide any evidence showing that the deposition will subject Plaintiffs to any unwarranted annoyance or embarrassment.  XPO and Hernandez contend that appearing at a deposition noticed by another party does not equate to undue burden or expense.  Additionally, XPO and Hernandez contend they will be prejudiced if the deposition does not proceed because the information related is directly related to Armando’s claims and injuries.

            In reply, Plaintiffs again contend that Defendants are seeking irrelevant information from Armando’s ex-wife, and the intrusiveness outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. 

            However, Plaintiffs also confirm in their reply that Plaintiffs will present witnesses to support Armando’s TBI claims and testify as to his mood, memory, and temperament before and after the accident.  While Plaintiffs argue that Allida does not have information or personal knowledge concerning these topics, Plaintiffs do not submit any evidence to support this argument.  Indeed, it is reasonable to infer that Plaintiff’s ex-wife would  know about his mood, memory, and temperament before the accident.  The party seeking the protective order is “required to show that the burden and expense or intrusiveness in (the discovery procedure) clearly outweighs the likelihood that the information sought will lead to discovery of admissible evidence.”  (Emerson Elec v. Superior Court, (1997) 16 Cal.4th 1101, 1110.)

            Although the deposition involves Armando’s ex-wife, who Plaintiffs claim Armando has not had contact with for some time, Plaintiffs do not articulate with any specific facts how the deposition would subject Plaintiffs or Armando to undue expense, harassment, annoyance, or embarrassment.  Plaintiffs further assert the deposition is merely a fishing expedition, but this alone is insufficient to warrant quashing the subpoena.  (See Stewart, 87 Cal.App.4th at 1013 [noting that fishing expeditions are permissible at times].)  Given Armando’s TBI claims, and Plaintiffs’ admission that witnesses will be called to testify as to his mood, memory, and temperament before accident, Allida may well provide relevant information.  Plaintiffs do not establish good cause for precluding Defendants from deposing Allida.  Therefore, Plaintiffs fail to show that any burden, expense, or intrusiveness involved in Allida’s deposition clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.  (Emerson Elec, 16 Cal.4th at 1110.)  Furthermore, to the extent Plaintiffs argue a protective order should be issued limiting Allida’s testimony, Plaintiffs fail to articulate what limitations they wish to impose.  The court will not now surmise as to what limitations may be proper or not. 

            Based on the foregoing, Plaintiffs’ motion to quash the deposition subpoena served on non-party Allida and for a protective order is denied. 

            No sanctions are requested, and none are awarded.

            Plaintiffs are ordered to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 26^th day of July 2022