Judge: Glenda Sanders, Case: JCCP5140, Date: 2022-09-09 Tentative Ruling

1. Motion for Order to Allow Filing Documents Under Seal re: Opposition to the Baldwin/Bone MSJ

2. Motion re: Deposition of Alan Robbins

December 17, 2022 Report and Recommendation re Robbins Deposition

Before the court are objections to the 12/17/21 Report and Recommendation from the discovery referee.

In the underlying motion, Defendants Moller Otay Lakes Investment LLC and Moller Investment Group, Inc. (“MOLI”) move to compel third party witness Alan Robbins to answer nine deposition questions that he refused to answer.

The discovery referee’s recommendation is to deny the motion in its entirety. However, defendants point out in their 8/19/22 Joint Status Report that the referee’s report does not specifically address several of the deposition questions.

While the court largely agrees with the discovery referee’s recommended outcome, the court adds the following analysis as additional reasons for accepting the discovery referee’s recommendation to deny the motion as to all the questions except Question No. 5 as to which the Court invites oral argument.

In the underlying motion, MOLI sought to compel responses to 9 specific questions, which are set forth in its Separate Statement:

1. Mr. Robbins, do you recall that in November 1991 the U.S.A. brought information against you asserting racketeering charges?
2. Do you recall you pled guilty to felony counts of extortion and bribery?
3. Mr. Robbins, after your guilty plea were you sentenced by the district court?
4. Mr. Robbins, when was it that you served time in the federal penitentiary?
5. Okay. Is it accurate that you started working with Ms. Devine for the Marina del Rey litigation after you had pled guilty for your conviction where you were obligated to pay $3.8 million in restitution to the U.S. Government?
6. Can you tell me the circumstances of when you stopped becoming [sic] a lawyer?
7. Mr. Robbins, are you familiar with a Title IX investigation relating to your attendance of an inappropriate Las Vegas shows with members of the UCLA spirit squad?
8. Mr. Robbins, according to an article July 6, 2019 in the Los Angeles Daily News, is it accurate that you admitted that this Las Vegas show was sexist and racist?
9. Mr. Robbins, have you been the subject of any other criminal proceedings other than what you've already told us in your deposition?

It is the burden of the party seeking the discovery to provide evidence from which the court can determine the matter sought is admissible or reasonably calculated to lead to the discovery of admissible evidence. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223; CCP §2017.010). Further, CCP §1987.1(a) authorizes the trial court to quash or modify a subpoena directed to a non-party witness or to “make any other order as may be appropriate to protect the person from unreasonable or oppressive demands.” (CCP §1987.1).

In a civil action, other than felony convictions, specific instances of prior dishonesty are inadmissible to attack or support the credibility of a witness. (Evid. Code §787; Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 560-561, disapproved on other grounds in People v. Freeman (2010) 47 Cal.4th 993, 1006, fn. 4). However, pursuant to Evid. Code §786, evidence of an individual’s character for honesty or veracity is admissible to attack credibility. (“Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.” [Emphasis added.])

Questions 1 through 4:

Questions 1 through 4 are related to the 1994 felony conviction that Mr. Robbins testified about. Although Form Interrogatory 2.8 does not necessarily provide an outer limit to discovery regarding felony convictions, in this case, those questions sufficiently exhaust the inquiry into Mr. Robbins’ felony conviction. Given the information already disclosed, Questions 1 through 4 are not reasonably calculated to lead to the discovery of admissible evidence.

Form Interrogatory No. 2.8 provides:

“2.8 Have you ever been convicted of a felony? If so, for each conviction state:

(a) the city and state where you were convicted;

(b) the date of convictions;

(c) the offense; and,

(d) the court and case number.”

No further information on the felony conviction would be admissible for Defendants’ stated purpose of impeaching Robbins’ credibility.

Question 5: MOLI contends that “…the circumstances surrounding [Robbins’] relationship with Receiver Faith Devine, is reasonably possible to lead to admissible evidence including witnesses for opinion and/or reputation evidence as to Robbins’ character for truth or veracity as well as relevant information [sic] the relationship between the Receiver and Robbins.”

The court defers tentatively ruling on Question 5 and invites oral argument.

Questions 6 through 9: MOLI has not met its burden as to these questions, which concern the circumstances surrounding Mr. Robbins ceasing to be a lawyer, a Las Vegas Show he apparently attended, and potential other criminal proceedings (as opposed to felony convictions). While MOLI contends that these topics are each reasonably calculated to lead to the discovery of admissible evidence concerning Mr. Robbins’ credibility, MOLI provides no evidence or argument explaining how or why these questions are believed to do so.

In cases where the discovery at issue is sought from a third party witness, courts are more cautious about enabling “fishing expeditions.” (See Calcor Soace Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224-225 (“Such improper methods of ‘fishing’ may (and should be) controlled by the trial court under the powers granted to it by the statute. [citations]  The concerns for avoiding undue burdens on the ‘adversary’ in the litigation . . . apply with even more weight to a nonparty.”).

For the above reasons, the motion is denied as to all questions except Question 5 as to which the Court will hear oral argument. The Court adopts the discovery referee’s recommendation regarding all questions except Question 5.

The Court also accepts the referee's recommendation as to MOLI’S request for sanctions, which is denied.

Sealing Motion

The court continues to September 30, 2022 at 1:30 p.m. in Department CX101, the Motion for Order to Allow Filing Documents Under Seal filed by Plaintiff Faith Devine and joined by the Baldwin/Bone Parties (ROA 1422).

The court, having reviewed the moving papers filed by Plaintiff and the Baldwin/Bone Parties’ joinder and response, as well as all supporting documents, is at this time inclined to order the filing of the following unredacted documents without sealing: ROAs 1215, 1263, 1305 and 1307 (Devine Declaration, Objections and Amended Objections thereto, and Proposed Order thereon). The parties with an interest in sealing the unredacted documents are the Baldwin/Bone Parties. However, the Baldwin/Bone Parties’ responses to the applications focus on their interest in protecting the substance of the Ernst & Young Opinions, which does not appear to be included in the aforementioned documents.

The court is inclined to grant the motion as to ROAs 1213 and 1214 (Opposition and Separate Statement).

As to the Appendix of Exhibits (ROA 1229), the court is unable to ascertain which portions of the nearly 800 pages are the subject of the sealing application.

The Baldwin/Bone Parties, as the parties with an interest in the sealing order, must provide the court with a complete list of excerpts (specified by ROA, page(s) and line(s) or Exhibit number, page(s) and line(s)) that are requested sealed. The Baldwin/Bone Parties must also prepare a proposed order which includes all of the necessary findings set forth in CRC 2.550(d) specifies, by ROA number, the unredacted versions of the documents that are to be placed under seal, and also fully complies with CRC 2.550(e). The supplemental documents must be filed no later than 9 court days before the continued hearing.

Plaintiff to give notice.