Judge: Colin Leis, Case: 22STCV01269, Date: 2025-03-03 Tentative Ruling

Case Number: 22STCV01269    Hearing Date: March 3, 2025    Dept: 74

Ricci v. City of Palmdale et al.

Defendant City of Palmdale’s Motion for Sanctions

BACKGROUND 

This motion arises from an employment dispute.

Plaintiff Maithi Ricci (Plaintiff) filed a complaint against her employer City of Palmdale (Palmdale) alleging wrongful termination for whistleblower retaliation. 

On April 30, 2024, Plaintiff’s counsel took the deposition of Palmdale’s former Human Resources Manager, Patricia Nevarez (Nevarez). 

Palmdale moves for monetary and evidentiary sanctions against Plaintiff and Plaintiff’s Counsel for conduct during the deposition.

LEGAL STANDARD

            The Court may impose sanctions on a party for misuse of the discovery process.  (Code Civ. Proc. § 2023.010.)  Misuse includes “[p]ersisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.”  (Code Civ. Proc. § 2023.010(a).)  The Court may impose sanctions against anyone engaging in the misuse of the discovery process.  (Code Civ. Proc. § 2023.030.)  Those sanctions may include monetary sanctions on the one engaging in the misuse, or the attorney advising misuse.  (Code Civ. Proc. § 2023.030.)  In addition to monetary sanctions, the Court may impose issue sanctions, evidence sanctions, terminating sanctions, and contempt.  (Code Civ. Proc. § 2023.030(a)-(e).)  “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. [Citation.]”  (Doppes v. Bentley Motors, Inc.¿(2009) 174 Cal.App.4th 967, 992; see J.W. v. Watchtower Bible and Tract Society of New York, Inc.¿(2018) 29 Cal.App.5th 1142, 1169.)

DISCUSSION

            On April 30, 2024, Plaintiff’s counsel, Iman Alamdari, Esq. (Alamdari) took the deposition of former Palmdale employee Nevarez.  During the deposition, Alamdari asked several questions Palmdale believed would elicit confidential information covered by Palmdale’s Attorney-Client and Closed Session privileges.  Over the course of the deposition, Palmdale asserted its privileges and designated portions “confidential” in order to preserve its objections.  Palmdale’s attorney then requested the deposition be ended so Palmdale’s attorney could seek a protective order. Although Palmdale is a named-party in this case, Alamdari stated in response,

“No. I’m going to keep inquiring. You can leave, if you so choose, but you can’t unilaterally terminate a deposition. It’s not your deposition to terminate; it’s my deposition. If you want to move for a protective order afterwards, you’re more than free to do that.”

(Brennen Decl. ¶ 15; Ex. A pp. 173:11-19.) 

            Discovery is limited to “any matter, not privileged, that is relevant to the subject matter involved in the pending action.”  (Code Civ. Proc. § 2017.010.)  Although Nevarez was privy to conversations with Palmdale’s attorney and conversations within closed-sessions, Nevarez does not hold Palmdale’s privileges and cannot waive them.  (See Evid. Code § 953.)  Therefore, any information to which Nevarez was privy fell outside the scope of proper discovery if she received it within the scope of attorney-client communications or in a closed-session.

            Palmdale’s attorney followed the proper procedure in objecting to questions which violated Palmdale’s privileges.  And when Palmdale’s objections were insufficient to protect privileged and confidential information, Palmdale’s attorney moved for a protective order.  (See Code Civ. Proc. § 2025.420(a).)  Alamdari’s insistence in continuing to question Nevarez on confidential and privileged material after Palmdale asserted the privileges was an abuse of the discovery process and warrants sanctions against Alamdari as the party engaging in the misuse.

            Palmdale requests both monetary and evidentiary sanctions.  Palmdale requests that several sections of the deposition should be stricken under California Code of Civil Procedure section 2023.030.  Additionally, Palmdale requests that Plaintiff be enjoined from (1) introducing the communications into evidence and (2) further discovery about discussions that occurred.  Finally, Palmdale requests an injunction barring Nevarez from answering questions covered by the Attorney-Client and Closed Session privileges.

            The attorney-client privilege applies to confidential communications between a client and his or her lawyer in the course of the attorney-client relationship.  (Evid. Code § 952.)  Those communications include legal opinions and advice given by the lawyer in the course of that relationship.  (Evid. Code § 952.) The attorney-client privilege may be waived if the holder of the privilege chooses to waive it.  Waiver may also be implied when the client puts at issue otherwise privileged communications.  (Chevron v. Pennzoil (9th Cir. 1992) 974 F.2d 1156, 1162.) 

            Plaintiff alleges that the City has implicitly waived its privilege by asserting as a defense that Palmdale engaged in a thorough investigation.  Facts regarding the investigation may be discoverable by methods that do not invade attorney-client communications (City of Petaluma v. Superior Court (2016) 248 Cal. App. 4th 1023, 1032), but the communications between the City’s attorney and Nevarez are not discoverable simply because Palmdale may reference the investigation.  Similarly, facts that may be discoverable from Nevarez’s public lawsuit are available through publicly filed documents, but not through questions that probe into the attorney-client privilege. 

            Plaintiff also contends that the crime-fraud exception applies. That exception applies when the attorney’s services were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud.  (Evid. Code § 956.)  Plaintiff fails to establish that the communications between Nevarez and the City Attorney were sought to commit a crime or fraud to which the exception applies. 

            Plaintiff also contends that the City is belatedly raising the privilege, but the record does not support this contention.  The record includes multiple attempts by the city’s attorney to assert the privilege. 

            The Closed Session privilege applies to topics such as (1) negotiations of real property interests, (2) discussions regarding pending litigation, (3) discussions relating to claims of liability, (4) discussions with attorneys, law enforcement, or security consultants regarding threats to the City or public, and (5) discussions regarding City employees.  (Govt. Code § 54956.7 et seq.)  The privilege does not apply, however, when the employee is expressing an opinion about the propriety or legality of actions taken by the legislative body.  (Govt. Code § 54963(e)(2).)  This exception does not apply to Nevarez’s deposition testimony at issue. 

            The Court finds the Attorney-Client Privilege (ACP) and Closed Session Privilege (CSP) apply to the following portions of Nevarez’s deposition:

·       Page 76:18-82:12 (ACP and CSP)

·       Page 106:11-108:3 (ACP)

·       Page 113:16-116:7 (ACP and CSP)

·       Page 116:19-119:16 (ACP and CSP)

·       Page 121:25-128:25 (ACP)

·       Page 133:5-25 (ACP)

·       Page 134:9-24 (ACP)

·       Page 169:1-170:11 (CSP)

·       Page 170:12-182:19 (CSP)

·       Page 184:22-189:9 (ACP)

Additionally, the court finds that an injunction regarding the communications in closed sessions is appropriate under Government Code section 54963(c)(1) when the communications do not refer to the propriety or legality of the actions taken by the legislative body.  This injunction does not extend to any information regarding attorney-client privilege as it is not covered by the Government Code section which empowers the court to enjoin disclosure. 

Plaintiff challenges the motion on the grounds that Palmdale failed to meet and confer on the issue.  The Court finds this unavailing given the clear attempt to address these issues both in previous proceedings before the Court as well as the attempts to remedy and outline procedures regarding the confidential material evidenced in the Deposition.

            Palmdale also requests monetary sanctions against Plaintiff in the amount of $25,000. Monetary sanctions must be supported by evidence and reasonable in amount but Palmdale does not substantiate the amount it requests. Therefore, the Court does not award monetary sanctions.

CONCLUSION

            The Court grants in part Defendant’s motion for sanctions.  The court strikes from the deposition, and the parties may not introduce into evidence, the following:

·       Page 76:18-82:12

·       Page 106:11:108:3

·       Page 113:16-116:7

·       Page 116:19-119:16

·       Page 121:25-128:25

·       Page 133:5-25

·       Page 134:9-24

·       Page 169:1-170:11

·       Page 170:12-182:19

·       Page 184:22-189:9

The Court issues an injunction barring the parties from introducing communications and information that is covered by the Closed Session Privilege into evidence and barring them from further discovery about discussions that are covered by the Closed Session Privilege.  The Court issues an injunction barring Nevarez from answering questions about discussions covered by the Closed Session Privilege. (Gov. Code § 54963(c)(1).)

The Court denies monetary sanctions.

            Defendant to give notice.