Judge: Daniel M. Crowley, Case: 18STCV08575, Date: 2022-08-30 Tentative Ruling

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Case Number: 18STCV08575    Hearing Date: August 30, 2022    Dept: 28

Defendants Covina Valley Unified School District and Dan Padilla’s Motion for Protective Order

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On December 12, 2018, Plaintiffs Cash Potts (“Cash”) and Aleatha Potts (“Aleatha”) filed this action against Defendant Covina Valley Unified School District (“CVUSD”) and Dan Padilla (“Padilla”) for negligence, assault and battery, violation of education code § 49001, violation of right of freedom from unlawful search and seizures and violation of penal code § 11165. 

On July 2, 2019, Plaintiffs filed the First Amended Complaint. On November 8, 2019, Defendants filed an answer. 

On August 4, 2022, Defendants filed a Motion for Protective Order to be heard on August 30, 2022. On August 17, 2022, Plaintiffs filed an opposition. On August 23, 2022, Defendants filed a reply.

Trial is currently scheduled for December 16, 2022.

PARTY’S REQUESTS

Defendants request the Court issue a protective order providing that Alexandria Davidson, the District’s former handling attorney in this case, need not appear for deposition.

Defendants also request the Court impose sanctions totaling $2,535.00 on Plaintiffs.

Plaintiffs request the Court deny the motion and the request for sanctions, instead imposing sanctions on Defendants totaling $1,350.00.

LEGAL STANDARD

Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.

The court may grant a protective order to prevent certain behavior at a deposition if justice so requires or to protect a party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. CCP § 2025.420. This includes excluding designated persons other than parties, officers, and counsel. The court shall impose sanctions against anyone who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the party acted with substantial justification.

DISCUSSION

Plaintiffs’ complaint stems from an altercation that occurred on a CVUSD campus in which Padilla confiscated an electronic cigarette Cash was using. Plaintiff served a deposition subpoena for Alexandria Davidson (“Deponent”), who represented CVUSD in the Skelly hearing against Padilla when Padilla contested his suspension following the incident. Plaintiffs have served a deposition notice for Deponent with the intent to ascertain information relating to CVUSD’s theories at the Skelly hearing.

The Court finds there is good cause to grant a protective order. Deponent will be unable to testify as to theories and evidence contemplated in support of CVUSD as it is protected by attorney client privilege. Any information Deponent could testify to has been produced by of the transcript from the hearing and from other depositions. It is an undue burden to ask the attorney to testify.

Plaintiffs state they wish to depose Deponent to determine what she witnessed regarding the treatment accorded to Cash at the Skelly hearing and not anything that would potentially breach attorney client privilege. Plaintiff cites to case law that shows attorneys are not immune from deposition, but, in all of these cases, there were exceptional circumstances. In Fireman's Fund Insurance Company v. Superior Court (1977) 72 Cal.App.3d 786, the court allowed a deposition to occur when the Plaintiff alleged the subject deponent worked in bad faith. In Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3" 1487, the court held that opposing counsel may be deposed where there are no other means to obtain the information, the information is relevant and nonprivileged, and crucial to the case. Neither of these are the scenario here. Although Plaintiffs seem to make some general allegations regarding bad faith, Plaintiff is not clearly arguing that their complaint is in part based upon Deponent’s bad faith. As multiple other employees were present at the hearing, this is not the only way to obtain the information. Even if Plaintiff has not actually deposed these individuals, which does not appear to be the case, Plaintiff can. Plaintiff argues that Deponent is not actually opposing counsel in this case, and thus should have a lower standard, but the Court is unconvinced. Although Deponent has not been an active attorney on this case, Deponent represented CVUSD in a deeply intertwined proceeding—the Court finds this is grounds for protective order.

Sanctions

Monetary sanctions are warranted given the misuse of the discovery process and the unsuccessful opposition to the motion. Defendants request $2,535.00 in sanctions, based upon 11 hours of attorney’s work at a rate of $225.00 per hour. 3 hours were spent meeting and conferring, 4 hours were spent drafting the motion, 3 hours were spent replying to the opposition, and 1 hour will be spent at the hearing on this motion. The Court awards $1,350.00 in sanctions, based upon 6 hours of attorney’s work.

CONCLUSION

Defendants Covina Valley Unified School District and Dan Padilla’s Motion for Protective Order is GRANTED. Alexandria Davidson’s deposition is precluded in its entirety.

Defendants Covina Valley Unified School District and Dan Padilla’s Request for Sanctions is granted. Plaintiffs and Plaintiffs’ counsel are ordered to pay Defendants sanctions totaling $1,350.00 within 30 days of the hearing on this motion.

            Moving party is ordered to give notice of this ruling.