Judge: Daniel S. Murphy, Case: 19STCV37687, Date: 2022-08-22 Tentative Ruling

Case Number: 19STCV37687    Hearing Date: August 22, 2022    Dept: 32

BACKGROUND

            On October 21, 2019, Lenny & Larry’s, LLC (“Plaintiff”) filed this action against A&B Ingredients, Inc. (“Defendant”), alleging (1) breach of the implied warranty of merchantability, (2) breach of the implied warranty of fitness, (3) negligence, and (4) unfair competition. The lawsuit arises from the following pertinent facts.

            Plaintiff is a manufacturer of health and fitness oriented food products, such as cookies. Defendant sells a variety of ingredients to food manufacturers, including Plaintiff. The particular ingredient at issue in this case is the antioxidant CytoGuard. CytoGuard is a cultured dextrose powder (“CDP”). Plaintiff alleges that the inclusion of CDP in its cookies caused the products to have an “off flavor” and “soapy” taste, leading to customer complaints and forcing Plaintiff to discontinue sales.

            On February 2, 2022, the Court granted Defendant’s motion for summary adjudication as to the negligence claim pursuant to the economic loss rule. On May 23, 2022, the Court granted Plaintiff leave to amend the complaint to add a cause of action based on fraud. The operative Second Amended Complaint alleges (1) breach of the implied warranty of merchantability, (2) warranty of fitness, (3) negligent misrepresentation, (4) fraudulent misrepresentation, and (5) unfair competition.

            On July 26, 2022, Defendant A&B Ingredients and third-party deponent ABIC International Consultants, Inc. (collectively “Moving Parties”) filed the instant motion for a protective order precluding Plaintiff from asking questions that seek legal conclusions or require expert opinions at the upcoming deposition of ABIC’s person most knowledgeable.  

LEGAL STANDARD

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (Code Civ. Proc., § 2025.420(a).) “The court, for good cause shown, may 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 and expense.” (Id., subd. (b).)

DISCUSSION

            Moving Parties request a protective order on the grounds that in previous depositions of Defendant A&B’s founder, managing director, and VP of sales, Plaintiff asked improper questions regarding the duties, responsibilities, and obligations of Defendant. (Mtn. 2:16-19, 4:25-28.) However, those individuals were qualified to answer questions about Defendant’s duties and obligations. (See Opp. 2:3-3:4.) Asking them for their view of the CDP and flavor issue does not necessarily call for a legal conclusion or expert opinion. Moreover, the scope of discovery is broad and is not limited to admissible material. (See Code Civ. Proc., § 2017.010.)

            In any case, Defendant is free to object to specific questions during the deposition of ABIC’s PMK. It is unnecessary at this time to issue a preemptive order precluding a broad and vaguely defined class of questions. Moving Parties did not object to the deposition subpoena or take issue with any of the listed categories of testimony. There is no immediate indication that the questioning of ABIC’s PMK will be harassing or unduly burdensome. A&B and ABIC’s knowledge regarding CDP, the product they imported, marketed, and sold to Plaintiff, is directly at issue in this case.

If Defendant remains concerned about the types of questions that may be asked during the deposition, the Court can appoint a discovery referee to oversee the deposition, at Defendant’s expense.   

CONCLUSION

            The motion for protective order is DENIED.