Judge Donald F. Gaffney, Case Thacker v. County of San Bernardino 2022-08-10 Tentative Ruling

Judge: Donald F. Gaffney, Case: Thacker v. County of San Bernardino, Date: 2022-08-10 Tentative Ruling

TENTATIVE RULING:

Motion 1: Motion for Protective Order.

Defendant County of San Bernardino moves for protective order prohibiting Plaintiffs from questioning any non-party deponent about certain subjects. For the following reason, the motion is DENIED without prejudice for failure to meet and confer.

Any motion for protective order “shall be” accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2017.020(a).) Section 2016.040, in turn, requires a supporting meet and confer declaration to “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The meet and confer requirement is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order . . . . This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016 [quoting Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435] [internal quotations and citations omitted].) There must be a serious effort at negotiation and informal resolution. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) “[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Id.) The particular level of effort required in each case depends on the circumstances including the amount of discovery propounded, the time available to confer before the motion filing deadline, and the extent to which a party was complicit in the lapse of available time. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 432.) “An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should also be considered. Although some effort is required in all instances, the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. These are considerations entrusted to the trial court's discretion and judgment, with due regard for all relevant circumstances.” (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 432–33.)

Here, Defendant County failed to engage in a reasonable and good faith attempt at an informal resolution of each issue presented in this motion. Between January and March 2022, the parties’ circulated proposed protective orders relating to the treatment of confidential information disclosed in discovery and/or at deposition. (See Franco Decl., Exs. 10, 16, 18.) The parties’ meet and confer ended with the parties disagreeing on whether a stipulated protective order regarding the treatment of confidential information should apply to only deposition testimony or to all discovery. (See Franco Decl., Exs. 16, 18.)

The parties’ meet and confer correspondence included no discussion about limiting the topics of deposition. (See Franco Decl., Exs. 2, 10, 16, 18.) In fact, the first mention of Defendant County’s requested relief—of limiting topics at deposition—is in the moving papers. This provided the parties no opportunity to resolve the issue informally.

Plaintiffs to give notice.

Motion 2: Joinder

Defendant Gregory Christopher Gardner provides notice of joining in Defendant County of San Bernardino’s motion for protective order and arguments presented therein. To the extent Gardner moves to join in Defendant County’s motion, the motion for joinder is DENIED.

A “notice of joinder” is in substance simply a notice the party is joining the arguments made in another party’s motion. (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1392 [superseded by statute on other grounds].) If a joinder is not in the form of a motion and does not present any evidence or argument, it does not alone constitute a motion that would entitle a party to relief or cause the party to be bound by the ruling of the court on the pending motion made by another party. (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1392 [superseded by statute on other grounds].)

Here, Defendant Gardner did not affirmatively request relief in his own name by way of joinder or file a separate motion for protective order seeking such relief. Defendant Gardner is not entitled to affirmative relief that he has not requested.

Defendant Gardner to give notice.