Judge: Elaine W. Mandel, Case: 22SMCV00164, Date: 2023-09-27 Tentative Ruling

Case Number: 22SMCV00164    Hearing Date: September 27, 2023    Dept: P

Tentative Ruling

Galleon Technology, Inc. v. Electronics Design, LLC, Case No. 22SMCV00164

Hearing Date September 27, 2023

Plaintiff Galleon Technology’s Motion for Protective Order/Appointment of Discovery Referee

Defendant Electronics Design designated Arash Shamoeil, its sole member/manager, as its person most qualified (PMQ). Shamoeil refused to answer relevant questions at deposition on June 20 and “subjected [p]laintiff’s counsel to humiliation, harassment, demeaning language, and unwanted vitriol.” On July 12, 2023, the second session of Shamoeil’s deposition concluded after 15 minutes when Shamoeil revealed prescription medication affected his memory and made him drowsy. On July 17, 2023 Shamoeil again refused to answer questions, chastised the court reporter and insulted plaintiff’s counsel with profanity.

A discovery referee will be appointed on a showing of “exceptional circumstances[.]” Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105-106. These circumstances include, but are not limited to, existence of multiple issues or multiple motions, voluminous documents to be reviewed or antagonism between the parties that might prolong the proceedings and frustrate discovery. Id. Under Cal. Code of Civ. Proc. §2025.420, a court may issue a protective order after a deposition to “protect any party, deponent, or other affected natural person or organization . . to protect any party, deponent, or other natural person or organization from unwanted annoyance, embarrassment, or oppression, or undue burden and expense.”

Galleon argues Shamoiel’s conduct warrants appointment of a discovery referee to prevent Shamoiel’s “harassment . . . condescension, swearing/cursing, and threats[,]” and make him respond to relevant questions. Motion, p. 11.

The transcripts show Shamoiel engaged in discovery abuse. He refused to answer questions regarding E-Design’s discovery responses and the evidentiary basis of its own claims, without an instruction from his own counsel. Plaintiff’s Exhibit F. These questions fall within the scope of permissible discovery. Shamoeil told plaintiff’s counsel “[y]ou’re not even a piece of shit to me” is a sanctionable breach of decorum. Exhibit F at 287:5-288:10.

The circumstances justifying appointment of a discovery referee are not present. Shamoeil’s conduct has been inappropriate, but he answered most questions appropriately. His abusive behavior and evasiveness on some topics justifies a protective order under §2025.420. The court will order Shamoeil to answer all questions unless his attorney instructs otherwise. The court orders Shamoeil to refrain from using profanities or making personal or professional attacks on counsel, the court reporter, or any participant in the litigation. Failure to comply will constitute contempt, resulting in sanctions.

The court will consider ordering further deposition to occur at the courthouse, so the parties can seek judicial intervention if necessary.