Judge: Barbara M. Scheper, Case: 21STCV00174, Date: 2022-07-26 Tentative Ruling

Case Number: 21STCV00174    Hearing Date: July 26, 2022    Dept: 30

Dept. 30

Calendar No.

Carlson vs. Farmers Insurance Exchange, et. al., Case No. 21STCV00174

Tentative Ruling re:  Defendants’ Motion to Compel Deposition

Defendants move to compel the deposition of John J. Lyons (Lyons), counsel for Plaintiff Douglas J. Carlson (Plaintiff). The motion is denied.

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, after service of a deposition notice, a party to the action . . . or employee of a party . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc. § 2025.450, subd. (a).)

The motion to compel deposition “shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (b)(1).) “The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

Plaintiff’s claims in this suit arise from the alleged wrongful termination and breach of contract by Farmers in December 2019. Defendants seek to depose Lyons on the grounds that Lyons represented Plaintiff in meetings with Farmers’ employees and corresponded with Farmers’ managers and counsel following Defendants’ notification of termination to Plaintiff. (Nagy Decl. ¶¶ 5-8, Ex. 3, Ex. 4, Ex. 5.) Defendants served a Notice of Deposition on Lyons on April 26, 2022, noticing Lyons’ deposition for May 11, 2022. (Hollins Decl. Ex. 8.)

Lyons had suggested to defense counsel he may seek to introduce his own testimony regarding Defendants’ failure to provide Plaintiff a “termination review board hearing” as evidence at trial. (Hollins Decl. ¶ 5; Lyons Decl. Ex. R.) Specifically, when asked by defense counsel whether he planned on testifying at trial, Lyons responded, “My plan isn’t final for trial. I would definitely call Zoltan Nagy, Chris Peoples, Jennifer Gassen, and Heather Wright. At this point those witnesses would seem to completely cover the area of the [termination review board hearing] and Defendants’ failure to provide one to Mr. Carlson before proceeding to terminate his contract. One never knows for sure what happens in a trial however.” (Lyons Decl. Ex. R.)

Lyons disputes Defendants’ account of his interactions with Farmers, and states that he had only one in-person interaction with Farmers’ employee Zoltan Nagy (a Director for Farmers). (Lyons Decl. ¶ 2.) On that occasion, Nagy gave Plaintiff the letter of termination and otherwise refused to conduct the meeting. (Lyons Decl. ¶ 2, Ex. A.) Following the cancelled meeting, Lyons corresponded with Farmers’ employees over e-mail regarding Plaintiff’s termination and the scheduling of a termination review board hearing. (Lyons Decl. Ex. A, Ex. C, Ex. E.) Lyons was later instructed to correspond with Farmers’ counsel Jennifer Gassen. (Lyons Decl. Ex. H.)

Lyons’ California attorney license was inactive from February 1, 2018, through November 24, 2020. (Hollins Decl. ¶ 3, Ex. 6.) The parties dispute whether Lyons’ communications during this period are entitled to the attorney-client privilege given his inactive status. The Court finds that they are not.

“No person shall practice law in California unless the person is an active licensee of the State Bar.” (Bus. & Prof. Code § 6125.) A “lawyer” for purposes of privilege “means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.” (Evid. Code § 950.)

During the relevant time period, Lyons was not an active licensee of the State Bar and so was not a “lawyer” for purposes of the attorney-client privilege. Accordingly, his communications with Plaintiff during that period could not have been privileged. (See People v. Klvana (1992) 11 Cal.App.4th 1679, 1724 [attorney-client privilege did not apply to conversations in which “attorney” informed client that she was no longer licensed and did not practice law].)

            Defendants must still satisfy the conditions set forth in Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, regarding when opposing counsel may be deposed. “The circumstances under which opposing counsel may be deposed are limited to those where (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and not privileged; (3) the information is crucial to the preparation of the case.” (Id. at 1496.)

Though Lyons was not an active attorney at the time of the communications in question, the limitations set by Spectra-Physics are premised on policy considerations still applicable here given Lyons’ current status as Plaintiff’s counsel. “[T]he practice of taking the deposition of opposing counsel should be severely restricted, and permitted only upon showing of extremely good cause.” (Spectra-Physics, 198 Cal.App.3d at 1493.) There are strong policy considerations against deposing trial counsel; it “not only disrupts the adversarial system and lowers the standard of the profession, but it also adds to the already burdensome time and costs of litigation.” (Id. at 1494.) Furthermore, “the practice of deposing opposing counsel detracts from the quality of client representation. Counsel should be free to devote his or her time and efforts to preparing the client's case without fear of being interrogated by his or her opponent.” (Id. at 1494.)

            Defendants have not satisfied the first and third requirements of Spectra-Physics. First, other means exist to obtain the information at issue. As Lyons stated in the email that prompted the notice of deposition, there are multiple other witnesses who possess information regarding the termination review board hearing. (Lyons Decl. Ex. R.) While Defendants describe Lyons as an “actual witness of the alleged breaches of contract,” this description appears to be solely based on the brief encounter in which Nagy handed Plaintiff the letter of termination; Plaintiff and Jila Badiei were also present on this occasion. (Lyons Decl. ¶ 2, Ex. A.) Defendants do not explain what information Lyons possesses that cannot be obtained from other sources. For the third requirement, Defendants have not shown that the information sought is crucial to the preparation of Defendants’ case. Lyons’ interactions with Farmers and its employees were limited to the single non-substantive in-person meeting plus email correspondence. There is no indication that Lyons obtained information crucial to Defendants’ case based on these events.

            Because these circumstances do not satisfy the conditions under which the deposition of opposing counsel is permitted, the motion is denied.