Judge Barbara M. Scheper, Case Number: 21STCV14870, Date: 2023-11-17 Tentative Ruling

Judge: Barbara M. Scheper, Case: 21STCV14870, Date: 2023-11-17 Tentative Ruling

Case Number: 21STCV14870 Hearing Date: November 17, 2023 Dept: 30

Dept. 30

Calendar No.

Levin vs. Allison & Partners LLC, et. al., Case No. 21STCV14870

Tentative Ruling re: Defendant’s Motion to Quash Deposition Subpoenas

Defendant Alllison & Partners LLC (Defendant) moves to quash deposition subpoenas served by Plaintiff Shelly Levin (Plaintiff) on Ashleigh Butson, Emily Linthicum, Scott Pansky, Matthew Della Croce, Brian Feldman, Jill Feldman, and Elliot Golan.

The motion to quash is granted as to Ashleigh Butson, Emily Linthicum, Brian Feldman, and Elliot Golan. The motion is denied as to Scott Pansky, Matthew Della Croce, and Jill Feldman.

Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents. (Code Civ. Proc., § 2020.010, subd. (b).) A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code Civ. Proc., § 2020.020.)

The court, upon motion or the court’s own motion, “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1, subd. (a).) In addition, “the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

“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.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

In this action, Plaintiff alleges that Defendant discriminated and retaliated against her based on her disability. Plaintiff was employed by Defendant from October 31, 2019, until August 23, 2021. (Comp. ¶¶ 15, 26.) This motion concerns seven Notices of Deposition served by Plaintiff on Defendant on October 4, 2023, seeking the depositions of Defendant’s current and former employees and current in-house counsel. (Jackson Decl. ¶ 5, Exs. A-G.)

Ashleigh Butson and Emily Linthicum are no longer employed by Defendant. (Jackson Decl. ¶¶ 13-17.) Given this, Plaintiff did not properly serve those witnesses; Plaintiff served her Notices of Deposition on Defendant, not on Butson and Linthicum themselves. (See Code Civ. Proc. § 2020.220.) Plaintiff does not dispute that Butson and Linthicum are not currently employed by Defendant, but argues that Defendant should be compelled to produce their contact information to Plaintiff. Plaintiff shows no basis for such an order, and so the Court declines to do so.

Brian Feldman is Defendant’s current in-house counsel. (Jackson Decl. ¶ 12.) “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.” (Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1496.) Plaintiff seeks to depose Mr. Feldman based solely on an email purportedly sent from him to other of Defendant’s employees following Plaintiff’s termination. Mr. Feldman wrote, “Apparently, someone changed her gratitude meter between then and now, but this is a good e-mail to have.” (Friedman Decl. ¶ 5, Ex. 3 [29].) The email was described in the deposition of Richard Kendall. The excerpt of Kendall’s deposition presented by Plaintiff gives no information regarding the context or import of Mr. Feldman’s email. This is insufficient to satisfy the “showing of extremely good cause” required for deposing opposing counsel. (Spectra-Physics, 198 Cal.App.3d at 1493.)

Scott Pansky, Matthew Della Croce, and Jill Feldman are current employees of Defendant. Pansky and Della Croce worked with Plaintiff while she was employed by Defendant, and Della Croce received complaints regarding Plaintiff’s performance. (Friedman Decl. ¶¶ 7, 16, Ex. 5 [34], Ex. 14 [87].) According to Kendall’s testimony, Ms. Feldman complained about Plaintiff’s work and requested that Plaintiff be removed from a project. (Friedman Decl., Ex. 2, pp. 55-56 [14].)

Defendant argues that these witnesses’ Notices should be quashed because they were not involved in Plaintiff’s termination or did not provide information informing Defendant’s decision to terminate Plaintiff, and so do not have relevant information. This argument misstates the scope of permissible discovery. Information is discoverable if it “is relevant to the subject matter involved in the pending action . . . [and] if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) The testimony of these witnesses, Plaintiff’s former co-workers, is discoverable; Plaintiff has shown that the witnesses, at minimum, have information concerning Defendant’s proffered non-discriminatory reason for Plaintiff’s termination. Accordingly, the motion is denied as to the subpoenas for Scott Pansky, Matthew Della Croce, and Jill Feldman.

Elliott Golan was hired by Defendant as a Vice President in December 2021, around three months after Plaintiff’s termination. (Friedman Decl., Ex. 2 [11].) Plaintiff’s title with Defendant was also Vice President. (Comp. ¶ 15.) Plaintiff argues that Golan may possess information relevant to Defendant’s claim that it terminated Plaintiff due to lack of work, because he was hired shortly after Plaintiff’s termination. (Jackson Decl., Ex. K, p. 120 [78].)

In opposition, Defendant offers Richard Kendall’s deposition testimony that Golan was not hired as Plaintiff’s replacement. (Jackson Decl. ¶ 10, Ex. K, p. 31 [71].) Defendant further asserts that Golan was hired to work on real estate in Seattle, Washington (in contrast to Plaintiff, who worked in the Los Angeles market), though Defendant presents no evidence in support of this claim – the cited testimony does not state that Golan worked in Seattle. (Motion p. 12; Jackson Decl., Ex. K, p. 118 [76].)

Thus, Plaintiff’s current evidence shows only that Golan was hired by Defendant as a Vice President around three months after Plaintiff’s termination. There is no evidence supporting Plaintiff’s claims that Golan’s “Vice President” title is the same previously held by Plaintiff, or that Golan’s work and duties are the same or similar to those that Plaintiff performed. The Court finds this insufficient to show that Golan’s deposition would be reasonably calculated to lead to the discovery of admissible evidence, and so grants the motion as to Golan’s subpoena.