Judge: Gary Y. Tanaka, Case: 20TRCV00831, Date: 2022-10-11 Tentative Ruling
Case Number: 20TRCV00831 Hearing Date: October 11, 2022 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Tuesday, October 11, 2022
Department B Calendar No. 4
PROCEEDINGS
David Shiokari, Jr., et al. v. Nobuko Shiokari, et al.
20TRCV00831
Kenneth Shiokari, et al.’s Motion for Protective Order
Rod Pacheco’s, Counsel for Victoria Shiokari, Motion to be Relieved as Counsel
TENTATIVE RULING
Kenneth Shiokari, et al.’s Motion for Protective Order is granted.
Rod Pacheco’s, Counsel for Victoria Shiokari, Motion to be Relieved as Counsel is denied without prejudice.
Background
Plaintiffs filed their Complaint on November 12, 2020. Plaintiffs’ operative First Amended Complaint was filed on August 17, 2021. Plaintiffs allege the following facts. Plaintiff David Shiokari, Jr. is the grandson of Defendant Nobaru Shiokari. Plaintiff Victoria Shiokari is David Shiokari, Jr.’s mother. (The Court notes that this Plaintiff is referred to as both Victoria Shiokari and Vicky Shiokari.) Defendants Kenneth and Stan Shiokari are Defendant Nobaru Shiokari’s sons, the brothers of David Shiokari, Sr., David Shiokari, Jr.’s father, and, thus, apparently David Shiokari, Jr.’s uncles. Defendants promised to provide health insurance for the family including all grandchildren until they reached the age of 26. Defendants failed to keep their promise. Plaintiffs allege the following causes of action: 1. Breach of Oral Contract; 2. IIED; 3. IIED; 4. Fraud; 5. False Promise. Defendants’ operative First Amended Cross-Complaint was filed on August 9, 2022.
Motion for Protective Order
The Court is authorized to limit discovery through a protective order. The order may be granted on motion of any party or other person affected by the discovery sought. CCP §§ 2017.020(a), 2019.020(b), 2019.030(a). A protective order may be obtained to limit the frequency or extent of use of any discovery method on any of the following grounds: (1) “The discovery sought is unreasonably cumulative or duplicative …; (2) “(The information) is obtainable from some other source that is more convenient, less burdensome or less expensive; (3) “The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” CCP § 2019.030(a)(1)-(2).
Code Civ. Proc., § 2025.420 states:
“(a) 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.
(b) 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. This protective order may include, but is not limited to, one or more of the following directions:
(1) That the deposition not be taken at all.
(2) That the deposition be taken at a different time.
(3) That a video recording of the deposition testimony of a treating or consulting physician or of any expert witness, intended for possible use at trial under subdivision (d) of Section 2025.620, be postponed until the moving party has had an adequate opportunity to prepare, by discovery deposition of the deponent, or other means, for cross-examination.
(4) That the deposition be taken at a place other than that specified in the deposition notice, if it is within a distance permitted by Sections 2025.250 and 2025.260.
(5) That the deposition be taken only on certain specified terms and conditions.
(6) That the deponent's testimony be taken by written, instead of oral, examination.
(7) That the method of discovery be interrogatories to a party instead of an oral deposition.
(8) That the testimony be recorded in a manner different from that specified in the deposition notice.
(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain matters.
(11) That all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled, or that conditions be set for the production of electronically stored information designated in the deposition notice.
(12) That designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition.
(13) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way.
(14) That the parties simultaneously file specified documents enclosed in sealed envelopes to be opened as directed by the court.
(15) That the deposition be sealed and thereafter opened only on order of the court.
(16) That examination of the deponent be terminated. If an order terminates the examination, the deposition shall not thereafter be resumed, except on order of the court.”
Defendants move for a protective order to prevent unwarranted annoyance, embarrassment, and oppression, as well as improper examination into matters protected by the Constitutional right of privacy and their financial condition and assets, during their depositions. As to Defendant Nobuko Shiokari, Defendants seek an order that her deposition be taken by written questions and/or interrogatories. Defendants request monetary sanctions against Plaintiffs and their counsel, Rod Pacheco of Pacheco & Neach in the amount of $10,460.00, jointly and severally.
Meet and Confer
Defendants set forth a meet and confer declaration in substantial compliance with CCP § 2025.420(a). (Declaration, Patricia Cymerman, ¶¶ 4-8.)
Motion for Protective Order
Defendants have sufficiently established that, during the deposition of Kenneth Shiokari, Plaintiffs’ counsel asked questions which would attempt to disclose information protected by the right of privacy of Kenneth Shiokari and third parties, who are not parties to this action, including family members of Kenneth Shiokari.
In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37, the California Supreme Court “established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. . . . . The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” Williams v. Superior Court, supra, 3 Cal.5th at 552 (citations omitted). In Hill, the Court “explained that not ‘every assertion of a privacy interest under article I, section 1 must be overcome by a “compelling interest.” . . . . A ‘“compelling interest”’ is still required to justify ‘an obvious invasion of an interest fundamental to personal autonomy.’” Id. at 556. In an older case, the California Supreme Court, in Valley Bank of Nevada v. Superior Court, “indulge[d] in a careful balancing of the right of civil litigants to discover relevant facts, on the one hand, with the right of bank customers to maintain reasonable privacy regarding their financial affairs, on the other.” Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657.
Here, Plaintiffs asked questions to the deponent regarding the private health, sexual, marital, and familial information related to Defendant deponent as well as third parties and family members of Defendant. Plaintiffs also asked questions related to the financial condition, employment history, and income information of Defendants and third parties. (Declaration, Patricia Cymerman, ¶¶ 2-3.)
Plaintiffs fail to establish that the need for this information outweighs the privacy interests of Defendants and the third parties. Defendants have sufficiently established that the questions were designed to annoy, harass, and embarrass the deponent.
In addition, Defendant has established good cause, based on the age and health of potential deponent Nobuko Shiokari, that her deposition may be conducted through written, rather than oral examination. (Declaration., Nobuko Shiokari, ¶¶ 1-2.)
Therefore, Defendants’ Motion for Protective Order is granted.
Sanctions
Defendants’ request for monetary sanctions is granted.
Sanctions are awarded in favor of Defendant and against Plaintiffs David Shiokari and Victoria Shiokari and Plaintiffs’ counsel in the total amount of $4,060.00. The hourly rate sought of $400 is a reasonable rate. The time allotted for preparation and appearance was 10 hours. Defendant was also awarded $60 in filing fees. Sanctions are payable within 30 days of this date.
Motion to be Relieved as Counsel
Counsel states, in his declaration, valid reasons for withdrawal. Counsel states that there has been a breakdown in communication. The court finds that the attorney has filed and served upon the client a declaration. The court also finds that the attorney has shown sufficient reasons why the motion to be relieved as counsel should be granted and why the attorney has brought a motion under Code of Civil Procedure § 284(2) instead of filing a consent under section 284(1). The court finds that counsel served the proposed order upon the client and all parties as required by Cal. Rules of Court, Rule 3.1362(d)(1).
With all this being noted, however, the motion is denied without prejudice due to a defect in notice, unless, at the hearing, moving party can provide proof of service for the new hearing date. The Court notes that moving party first attempted to advance the hearing date of this motion from January 10, 2023 to an earlier date via an ex parte application. The ex parte application was denied. However, on September 22, 2022, at the Case Management Conference, the Court entered the following minute order which reads, in relevant part: “Pursuant to the request of moving party, the Hearing on Motion to be Relieved as Counsel scheduled for 01/10/2023 is continued to 10/11/2022 at 08:30 AM in Department B at Torrance Courthouse. ... Notice is waived.” The Court notes that the order purports that “notice is waived.” However, there is no showing that the clients of the moving party counsel were present at Court and waived notice of the motion to be relieved as counsel. The clients must be given notice of a hearing date of a motion to be relieved as counsel.
Therefore, the motion to be relieved as counsel is denied without prejudice.
Defendants are ordered to give notice of the Court’s ruling.