Judge Cynthia A Freeland, Case 37-2022-00010632-CU-WT-NC 2023-11-07 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2022-00010632-CU-WT-NC, Date: 2023-11-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 02, 2023

11/03/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Wrongful Termination Motion Hearing (Civil) 37-2022-00010632-CU-WT-NC BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Quash Subpoena, 09/15/2023

Plaintiff Lisa Busalacchi-Ryder ('Plaintiff')'s motion to quash Defendant Solana Beach School District ('Defendant')'s Subpoena for Deposition Testimony (the 'Deposition Subpoena') to Nora Ryder ('Nora') or, in the alternative, for a protective order precluding Nora's deposition is granted.

Courts generally recognize that the right to discovery is broad, and disclosure is favored 'unless the request is clearly improper by virtue of well-established causes for denial.' Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 541. '[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.' Cal. Code Civ. P. § 2017.010. '[I]nformation is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating a settlement . . . .' Gonzalez v. Sup. Ct. (1995) 33 Cal. App. 4th 1539, 1546. Where a nonparty is involved, discovery must not be unduly burdensome nor merely a fishing expedition. See Calcor Space Facility, Inc. v. Sup. Ct.

(1997) 53 Cal. App. 4th 216, 225. Toward that end, California Code of Civil Procedure ('CCP') § 1987.1(a) provides that: If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, 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. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

Cal. Code Civ. P. § 1987.1(a).

In addition, '[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.' Cal. Code Civ. P. § 2017.020(a). The court, for good cause shown, may also '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 or expense' including, but not limited to, an order that the deposition not be taken at all. See Cal. Code Civ.

P. § 2025.420(b)(1).

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3019824 CASE NUMBER: CASE TITLE: BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT 37-2022-00010632-CU-WT-NC As an initial matter, to the extent Plaintiff argues that Nora's deposition should not go forward because her testimony would not produce admissible evidence, such argument is not well taken. Admissibility is not the test for discovery; rather, discovery is permissible if it might reasonably lead to admissible evidence. See Seahaus La Jolla Owners Assn. v. Sup. Ct. (2014) 224 Cal. App. 4th 754, 767. In addition, Plaintiff cites no authority for the proposition that Nora cannot be deposed simply because she has not been identified on the parties' respective witness lists. See Plaintiff's Motion, Ex. I. Furthermore, Plaintiff provides no evidence, other than mere speculation, that Defendant propounded the Deposition Subpoena and/or have used/plan to use the discovery process as a means to harass, embarrass, unduly burden, or otherwise harm Nora.

That being said, the court finds that Plaintiff has demonstrated good cause for an order quashing the Deposition Subpoena. While the scope of the deposition is not explicitly set forth in the Deposition Subpoena or the notice thereof (see Plaintiff's Motion, Ex. J), Defendant contends that it seeks Nora's testimony concerning Plaintiff's alleged unauthorized conduct that led to her demotion at Carmel Creek, including, inter alia: (1) the number of times Plaintiff left Carmel Creek to pick up Nora from Solana Pacific; (2) the number of times Plaintiff had her administrative assistant, Mashelle Ingrande, or any other employee leave Carmel Creek to pick up Nora; (3) the number of times Plaintiff brought Nora back to Carmel Creek; (4) conversations Nora had with Plaintiff about picking her up early, including conversations between Plaintiff and school staff that Nora overhead; and (6) what Nora observed concerning Plaintiff's alleged emotional distress. The court, however, having carefully considered the parties' arguments and evidence, must agree with Plaintiff that Nora need not be deposed as to the matters set forth in the Deposition Subpoena.

As set forth above, the court must limit discovery if the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. In addition, discovery sought from a nonparty such as Nora must not be unduly burdensome. In this case, Plaintiff has presented ample evidence that Nora, now 15-years-old and residing in Tennessee, suffers from generalized anxiety disorder such that she is at risk of severe emotional distress should she be subjected to a deposition. See Plaintiff's Motion, Ex. G; Swan Decl., Ex. A.

Additionally, in response to Plaintiff's Special Interrogatories (Set One) No. 1, Defendant indicated that its reason(s) for releasing Plaintiff from her principal position in 2021 are set forth in Defendant's April 28, 2021 Notice of Intent to Recommend Release and Reassignment From Administrative Position (the 'Notice of Intent'). See Plaintiff's Motion, Exs. A-B. The Notice of Intent, which was signed by Defendant's Superintendent and Plaintiff's direct supervisor, Jodee Brentlinger, after an investigation by Defendant's Assistant Superintendent, Dr. Courtney Goode, indicates that Plaintiff was demoted for, inter alia: (1) authorizing Ms. Ingrande to leave Carmel Creek to pick up Nora; (2) leaving Carmel Creek to pick up Nora; (3) bringing Nora to Carmel Creek and allowing her to remain on site during school hours; (4) remaining offsite for an extended period of time to take Nora home; and (5) not informing her supervisor or properly reporting her absences from Carmel Creek. Defendant fails to provide a persuasive explanation for how/why the exact number of times Plaintiff engaged in the foregonig conduct is relevant to this proceeding when Plaintiff does not dispute that it occurred – indeed, Plaintiff testified that she picked up Nora from Solana Pacific roughly 12-15 times, and Ms. Ingrande has acknowledged that she voluntarily picked up Nora during her break on roughly two occasions. Ibid., Exs.

C-E.

More importantly, Defendant has not demonstrated that the information it seeks cannot be obtained through less intrusive means. Defendant contends that Nora's deposition is necessary as she is the only one, other than Plaintiff, with personal knowledge of Plaintiff's unauthorized conduct, which Defendant contends is dispositive as to its justification in demoting Plaintiff. The court respectfully disagrees. More specifically, the court agrees with Plaintiff that the information Defendant seeks is either: (1) already in its possession, or (2) can be obtained from other sources. For example, Plaintiff has already been deposed and provided testimony regarding her emotional distress. Defendant also deposed one of Plaintiff's medical providers, Dr. Rakefet Benderly, who was asked about Plaintiff's emotional distress. Plaintiff has Calendar No.: Event ID: TENTATIVE RULINGS

3019824 CASE NUMBER: CASE TITLE: BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT 37-2022-00010632-CU-WT-NC also identified through her discovery responses two other witnesses who can testify as to Plaintiff's emotional distress: (1) Plaintiff's husband, Scott Ryder, and (2) Plaintiff's current psychologist, Dr. Sarah Gates. Ibid., Ex. H. As another example, Defendant can determine the number of times Plaintiff picked up Nora at Solana Pacific through its own witnesses and documents, including text messages between Plaintiff and Defendant's employees. Defendant is free to question those witnesses as to the circumstances surrounding Nora leaving the Solana Pacific campus. Moreover, to the extent Defendant seeks Nora's testimony as to conversations Plaintiff had with other staff members, there is obviously a more direct and less intrusive means to obtain that information – by asking the staff members and/or Plaintiff.

In light of the foregoing, the court grants Plaintiff's motion and quashes the Deposition Subpoena in its entirety.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, November 3, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of November 3, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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