Judge: Daniel M. Crowley, Case: 21STCV40339, Date: 2022-10-13 Tentative Ruling

Case Number: 21STCV40339    Hearing Date: October 13, 2022    Dept: 28

Defendant Kobi Vaknin’s Motion for Protective Order

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

BACKGROUND

On November 2, 2021, Plaintiff Amanda Worley (“Plaintiff”) filed this action against Defendant Kobi Vaknin (“Defendant”) for sexual battery and trespass.

On December 21, 2021, Defendant filed an answer.

On September 14, 2022, Defendant filed a Motion for Protective Order to be heard on October 13, 2022. On September 30, 2022, Plaintiff filed an opposition. On October 6, 2022, Defendant filed a reply.

Trial is currently scheduled for May 2, 2023.

PARTY’S REQUESTS

Defendant requests the Court grant a protective order prohibiting Plaintiff from taking the deposition of Third-Party Nofar Bidani (“Deponent”). Defendant also requests the Court impose sanctions totaling $5,341.00 against Plaintiff and her counsel.

Plaintiff requests the Court deny the motion and the request for sanctions.

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.

Code of Civil Procedure §1987.1: (a) If a subpoena requires the attendance of a witness or the production of books, documents, 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. (b) The following persons may make a motion pursuant to subdivision (a): (1) A party. (2) A witness. (3) A consumer described in Section 1985.3. (4) An employee described in Section 1985.6. (5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.

DISCUSSION

Protective Order

Defendant requests the Court grant a protective order against the deposition of Deponent, as the deposition is not calculated to lead to the discovery of admissible evidence and is done for the purposes of harassment. Plaintiff sues Defendant for sexual assault.  Deponent is Defendant’s wife, who stated under oath that she had no knowledge of Defendant’s infidelity or Plaintiff’s existence until receipt of the deposition subpoena. Plaintiff also testified in her deposition that she does not know if Deponent knows anything about the subject incident. Defendant anticipates that Plaintiff seeks to question deponent about Defendant’s immigration status, which is irrelevant.

Plaintiff argues that the deposition should be allowed as Deponent’s testimony is highly relevant to showing Defendant’s patterns of dishonesty, propensity for misleading women, and his overall credibility. Plaintiff seeks this information to establish evidence of habit or custom. The Court agrees with Plaintiff that the mere fact Deponent was unaware of Plaintiff prior to the subpoena does not preclude her from being a relevant witness. However, the reasoning for the deposition appears to be improper and irrelevant to the case. Plaintiff’s causes of action are for trespass and sexual battery—specifically relating to one incident after Plaintiff’s relationship with Defendant was already terminated. Neither of these causes of action benefit from identifying patterns of dishonesty or a propensity for misleading women. Credibility, alone, is not a sufficient basis for a deposition of an individual who has not been identified as a witness. Based on the above, the Court grants the motion.

Sanctions

Defendant requests $5,341.00 in sanctions, based on 19.2 hours of attorney’s work, at a rate of $275.00 per hour, and a $61.00 filling fee. Attorney’s work is based on 12.2 hours drafting the motion, 5 hours preparing a reply, and 2 hours to appear at the hearing. The Court grants sanctions totaling $1,711.00, based upon 6 hours of attorney’s work at a rate of $275.00 and one $61.00 filling fee.

CONCLUSION

Defendant Kobi Vaknin’s Motion for Protective Order is GRANTED.

Defendant Kobi Vaknin’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay Defendant sanctions totaling $1,711.00 within 30 days of the hearing on the motion.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.