Judge: Daniel M. Crowley, Case: 20STCV12375, Date: 2023-05-16 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV12375    Hearing Date: May 16, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Andres G. Ortiz’s motion to compel Defendants Arconic, Inc., Arconic Global Fasteners & Rings, Inc., Arconic Corporation, and Howmet Aerospace, Inc., to provide responses to Plaintiff’s non-privileged questions is granted in part and denied in part as moot, stated below.

Plaintiff’s request for monetary sanctions against Defendants Arconic, Inc., Arconic Global Fasteners & Rings, Inc., Arconic Corporation, and Howmet Aerospace, Inc., and their attorney of record is denied.

Plaintiff Andres G. Ortiz (“Ortiz”) (“Plaintiff”) moves to compel Defendants Arconic, Inc. (“Arconic, Inc.”), Arconic Global Fasteners & Rings, Inc. (“Global Fasteners”), Arconic Corporation (“Arconic Corp.”), and Howmet Aerospace, Inc. (“Howmet”) (collectively, “Defendants”) to provide responses to Plaintiff’s non-privileged questions.  (Notice of Motion, pg. i.)  Plaintiff further requests sanctions against Defendants and their counsel of record in the amount of $5,250 on the basis that Defendants’ counsel prevented a deposition from proceeding by instructing the deponent not to answer questions.  (Notice of Motion, pgs. i-ii; C.C.P. §§2025.010, 2025.620.)

Background

Plaintiff filed his initial complaint on March 30, 2020.  Plaintiff filed his operative first amended complaint (“FAC”) on June 18, 2020, alleging causes of action for retaliation in violation of the Labor Code, wrongful termination, intentional infliction of emotional distress, unfair business practices in violation of the Business and Professions Code, and a PAGA claim, stemming from his employment and subsequent termination by Defendant Global Fasteners.  (See FAC.)

Plaintiff attempted to depose Sue Kimble, Director of Human Resources and timely served a notice of deposition on December 7, 2022, and at deposition defense counsel instructed Kimble not to answer questions on the basis of privilege.  (Decl. of Mostafavi ¶¶6-7, Exh. B at 44:19-45:12, 46:2-11, 52:7-53:15, 97:24-98:2, 104:8-22, 105:24-107:2.)  During the deposition, counsel engaged in a telephonic consult with the Court and later resumed deposition before suspending the deposition to bring the instant motion.  (Decl. of Mostafavi ¶¶10-11, Exh. B at 111:1-111:11, 116:17-118:10.)

Plaintiff filed the instant motion to compel Defendants’ responses to questions at deposition on January 10, 2023.  Defendants filed their opposition on May 3, 2023.  Plaintiff filed his reply on May 8, 2023.

Meet and Confer

A motion to compel answers to a deposition must be accompanied by a declaration stating facts showing “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (C.C.P. §§2016.040, 2025.480(b).)

Plaintiff’s counsel declares he mailed Defendants’ counsel to meet and confer regarding the issues in the instant motion.  (Decl. of Mostafavi ¶12.)  Plaintiff’s counsel declares Defendant’s counsel responded.  (Decl. of Mostafavi ¶12, Exh. C.)  Plaintiff’s counsel’s declaration does not explicitly state the parties were unable to informally resolve their issues outside of court, but the Court takes notice of counsels’ emails and deduces such efforts to meet and confer were made in good faith and were unsuccessful.  (See Decl. of Mostafavi ¶12, Exh. C.)

Motion to Compel Responses in Deposition of Sue Kimble 

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking that answer or production may adjourn the deposition or complete the examination on other matters without waiving the right at a later time to move for an order compelling that answer or production under Section 2025.480.”  (C.C.P. §2025.460(e).)

A deponent who has objected to a question and refused to answer bears the burden of justifying such refusal on the motion to compel. For example, if the objection was that the question called for privileged information, the burden is on the deponent to show that the question in fact calls for information protected by a privilege.  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶8:814.)  Sometimes, the deponent will have to prove extrinsic facts to justify his or her objection.  If the objection is privilege, the deponent may have to show the existence of the privileged relationship (attorney-client, spouses, etc.).  (San Diego Professional Association v. Superior Court (1962) 58 Cal.2d 194, 199.)

In California, clients enjoy a privilege “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.” (Evid. Code §954.)  Such communications include legal opinions formed and the advice given in the course of that relationship.  (Id. §952; Calvert v. State Bar (1991) 54 Cal.3d 765, 779.)

Plaintiff’s Counsel posed the following questions to Kimble at issue in this motion: (1) “what was the purpose of the declaration you submitted?” (Decl. of Perkin ¶5, Exh. B at 44:24-25); (2) “did you draft [the declaration] yourself?” (Decl. of Perkin, Exh. B at 46:2); (3) “[d]id you submit any exhibits to your declaration?” (Decl. of Perkin, Exh. B at 55:24-25); (4) “I was going to ask a couple of questions regarding paragraph 6 of your declaration. And resuming the line of the question is that you declared that the warnings are generated at the time they are issued by the company to the employee; is that correct?”, “[c]an you elaborate on what you mean by ‘generated at the time they are issued by the company to the employee’?”, “[c]an you elaborate what you mean by ‘generated,’ the word ‘generated’ that you used, and also ‘issued’?” (Decl. of Perkin, Exh. B at 96:22-97:9); (5) “did you provide the content of your declaration before you signed it?” and “[h]ow did you do that?” (Decl. of Perkin, Exh. B at 50:9-12); (6) “[d]o you have any recollection of where did you find any other exhibits that you supported—that you submitted in support of your declaration?”  (Decl. of Perkin, Exh. B at 104:8-10); and (7) “[s]o you did not receive them in September of this year when you signed the declaration; correct?”  (Decl. of Perkin, Exh. B at 105:25-106:1.)

None of the questions subject to Defendants’ counsel’s objection attempted to obtain protected communications.  (See Decl. of Mostafavi ¶¶7-8, Exh. B at 46:2-11, 52:7-53:15, 55:24-56:25, 97:24-98:2, 105:24-107:2, 107:11-108:10.)  Here, Defendants did not and cannot establish that the communication was confidential because the privilege “only protects disclosure of communications between the attorney and the client; it does not protect disclosure of underlying facts which may be referenced within a qualifying communication.”  (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 639.)  Assuming, arguendo, that the content of the declaration contained privileged communication, by submitting the declaration to support of the summary judgment motion, the privilege is lost.  (Evid. Code ¶951.)  The communications reflecting the requesting of, or the rendering of, legal advice are protected by the attorney-client privilege but those reflecting “factual claims investigation” or “adjustment” records or reports are subject to discovery regardless of whether conducted by an attorney.  (Ranch LLC v. Superior Court (2003) 113 Cal.App.4th 1377, 1398.)

Defendants’ counsel submits evidence that Kimble provided responses to two of the questions in the deposition, which renders an order to compel responses moot as to those questions: (5) “did you provide the content of your declaration before you signed it?” and “[h]ow did you do that?” (Decl. of Perkin, Exh. B at 50:9-12); and (6) “[d]o you have any recollection of where did you find any other exhibits that you supported—that you submitted in support of your declaration?”  (Decl. of Perkin, Exh. B at 104:8-10.)  Kimble responded to question five in the affirmative and elaborated on her answer following counsel’s objection.  (Decl. of Perkin, Exh. B at 50:11, 50:18-20).  Similarly, Kimble provided substantive responses to question six.  (Decl. of Perkin, Exh. B at 105:5, 105:7.)  As such, Plaintiff’s motion as to question Nos. 5 and 6 are denied as moot.

Accordingly, Plaintiff is entitled to responses to question Nos. 1, 2, 3, 4, and 7 posed to Kimble in deposition and orders Defendants that answers be given when deposition resumes.  (C.C.P. §2025.480(e).)

Sanctions

The Court finds sanctions are not warranted in light of the ruling on the motion. 

Conclusion

Plaintiff’s motion is granted in part as to question Nos. 1, 2, 3, 4, and 7.  Plaintiff’s motion is denied as moot as to question Nos. 5 and 6.

Plaintiff’s request for sanctions is denied.

Dated:  May ____, 2023

Hon. Daniel M. Crowley

Judge of the Superior Court