Judge Barbara M. Scheper, Case Number: 23STCV23311, Date: 2024-10-11 Tentative Ruling

Judge: Barbara M. Scheper, Case: 23STCV23311, Date: 2024-10-11 Tentative Ruling

Case Number: 23STCV23311 Hearing Date: October 11, 2024 Dept: 30

Dept. 30

Calendar No.

Food 4 Less of California, Inc. vs. Hamilton Court LLC, et. al., Case No. 23STCV23311

Tentative Ruling re: Plaintiff’s Motion to Quash Deposition Subpoena and for Protective Order

Food 4 Less of California, Inc. (Plaintiff) moves for an order quashing the deposition subpoena served on Plaintiff’s counsel Eve Brackmann and for a protective order. The motion is granted.

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. (Id., § 2020.020.) The court, upon motion by a party 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.” (Id., § 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.” (Ibid.)

“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.)

Plaintiff commenced the present lawsuit against Hamilton Court, LLC, 3650 Olympic L.P., 3650 Olympic LLC, and Toluca Lake Collective, Inc. (Defendant) on September 25, 2023, alleging breach of contract regarding a previous settlement agreement and seeking declaratory relief. On September 3, 2024, Defendant served counsel for Plaintiff, Eve Brackmann (Counsel), with a deposition subpoena in advance of an upcoming hearing on Plaintiff’s motion for summary adjudication. (Brackmann Decl. ¶ 4.) Defendant seeks testimony concerning discussions between Counsel and Plaintiff about draft lease amendments related to the past settlement agreement. Plaintiff moved for a protective order and to quash the subpoena on September 16, 2024, on the basis that Plaintiff has failed to justify a deposition of opposing counsel under Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558.

While attorneys are not immune from being deposed, “[d]epositions of opposing counsel are presumptively improper, severely restricted, and require ‘extremely’ good cause — a high standard.” (Id. at p. 1562 quoting Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1493.) California uses a three-prong test to determine if such a deposition is warranted. (Id. at p. 1563.) Opposing counsel may only be deposed 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, supra, at p. 1496.)

This doctrine is grounded in strong policy considerations. (Carehouse, supra, at p. 1562.) Attorney depositions are disruptive and expensive for clients. (Ibid.) They distort the adversarial system by requiring counsel to act as both advocate and witness. (Ibid.) They can lead to endless collateral disputes about which attorney statements are privileged, causing great delay. (Id. at p. 1563.) And when abused, they can even harm the attorney-client relationship by sowing distrust between client and attorney. (Ibid.) The Court will address each Spectra-Physics prong in turn.

First, Defendant must show that “no other means exist to obtain the information than to depose opposing counsel.” (Spectra-Physics, supra, at p. 1496.) Defendant contends that Counsel is the only potential witness who could testify about the lease amendment negotiations at issue. Plaintiff’s person most qualified testified in deposition but did not know the details of the negotiations. (Khan Decl. ¶ 3, Ex. B.) Plaintiff’s store managers can testify about the relevant violations of the settlement agreement (Brackmann Decl. ¶ 14), but these store managers were not privy to the negotiations surrounding the lease amendments. (Id., Ex. 7.) Indeed, Counsel has expressed that she is the only person who could testify as to the negotiations surrounding the settlement agreement and lease amendments from Plaintiff’s perspective. (Khan Decl., Ex. B.) Thus, Defendant has satisfied the first prong in showing that no other deponent exists.

Second, Defendant must show that “the information sought is relevant and not privileged.” (Spectra-Physics, supra, at p. 1496.) Importantly, the party opposing discovery has the burden to show preliminary facts supporting the applicability of attorney-client privilege. (Carehouse, supra, at p. 1563.) Counsel asserts that the testimony sought would be privileged attorney-client communications. (Brackmann Decl. ¶ 11.) Defendant contends that Counsel can testify to some matters which would be outside of privilege. (Khan Decl. ¶ 5.) This argument does not satisfy the second prong. Any attorney deposed could be asked about unprivileged matters; the second prong concerns the main information sought by Defendant. Here, that information primarily concerns discussions between Counsel and Plaintiff concerning previously drafted lease amendments. These discussions occurred within the attorney-client relationship and should not be subject to discovery. Whether Counsel can testify to other non-privileged matters is irrelevant.

Defendant further argues that any privileged matters can be addressed through objections at the deposition, but this again defeats the purpose of the second Spectra-Physics prong. Defendant seeks testimony about likely conversations between Counsel and Plaintiff regarding draft lease amendments. That Counsel could object to questions concerning privileged matters defeats the purpose of any proposed deposition which concerns almost exclusively privileged matters. Thus, the Court finds that Plaintiff has shown that the information sought would be privileged, and Defendant has failed to satisfy the second prong.

Third, Defendant must show that the information sought “is crucial to the preparation of the case.” (Spectra-Physics, supra, at p. 1496.) Defendant contends that the stated intentions of the parties to the settlement are critical to interpreting the lease amendments. Specifically, Defendant seeks to determine whether the Plaintiff intended for the settlement or lease amendments to govern when the settlement was signed in 2019. To that end, the documents’ language and principles of contractual interpretation will be far more crucial to Defendant’s case than the discussions between Plaintiff and Counsel while drafting them. Defendant has not shown that the information sought is crucial to the preparation of their case. Thus, Defendant has not satisfied the third prong either.

Accordingly, the Court grants the motion to quash the deposition subpoena served on Counsel and issues a protective order prohibiting Defendant from seeking further discovery from Counsel in this case.