Judge: Gregory Keosian, Case: 20STCV35952, Date: 2023-04-20 Tentative Ruling

Case Number: 20STCV35952    Hearing Date: April 20, 2023    Dept: 61

Plaintiff Maria Elana Williams-Slaughter’s Motions to Compel Deposition of Sharon Landers and David Roberts are GRANTED as to David Roberts, specifically as to the reasons for Faye Moseley’s termination of employment. The motions are otherwise DENIED.

Plaintiff to give notice.

I.      MOTION TO COMPEL DEPOSITION

A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).)

Plaintiff Maria Elana Williams-Slaughter (Plaintiff) moves to compel a further deposition of Sharon Landers and David Roberts.

Plaintiff seeks a further deposition of Sharon Landers to elicit testimony concerning two issues: the identity of an individual employee of Defendant City of Carson (Defendant) who was said to have been found with hundreds of unpaid invoices stuffed in their desk. (Motion at p. 3.) Because Defendant alleged as a reason for Plaintiff’s termination her failure to ensure timely payment of invoices, and because Landers testified that this employee worked under Plaintiff’s supervision, the identity is relevant to assess the reasons for Plaintiff’s termination. (Motion at p. 6.) Landers was instructed not to testify on the grounds of third-party privacy concerning the identity of the employee with the invoices. (Motion Exh. 2.) The second matter for which Plaintiff seeks further deposition of Landers is as to an investigation into her that took place after a council member complained of her “bullying” tactics. (Motion at p. 4.) Landers was instructed not to answer on the grounds that the investigation, conducted by an outside firm, is protected by the attorney-client privilege. (Motion Exh. 3.)

Plaintiff argues that there are no privacy concerns implicated in identifying the employee with the unpaid invoices, as the identity of this employee is relevant to the reasons for Plaintiff’s termination — one of which was her purported responsibility for non-payment of City invoices. (Motion at p. 3.) Plaintiff also argues that the investigation in Landers is not privileged, as any such privilege is waived when the employer defends the action by reliance upon the contents of that investigation. (Motion at p. 7, citing WellPoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4^th 110, 128.)

Defendant in opposition argues that Landers lacked personal knowledge of the unpaid-invoices employee, and it would be irresponsible to ask her to speculate as to their identity. (Motion at p. 3.) Defendant further argues that Plaintiff has obtained the identity of the employee from another deposition. (Villareal Decl. ¶ 5.) Defendant further argues that the contents of the investigation are privileged because Plaintiff relies on a waiver argument based on the employer’s use of the investigation as a defense, when the investigation here, which occurred after Plaintiff’s termination and not at her prompting, was not raised as a defense. (Opposition at pp. 4–6.)

Defendant’s instruction of Landers not to answer with regard to the identity of the employee with the desk full of unpaid invoices was improper. Although privacy objections may furnish a basis for an instruction not to answer during a deposition (See Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial, (The Rutter Group 2022) Discovery, ¶ 8:734.2), there was no basis to withhold this information here, where Landers was one of the individuals responsible for Plaintiff’s termination called to testify concerning her reasons therefore, and indeed testified that she had discussed this individual and the incident in question with Plaintiff prior to her termination. (Motion Exh. 2 at p. 262.)

However, while this instruction was improper, there is no reason to compel further deposition on this subject, as the information is already in Plaintiff’s possession. Landers confirmed discussing this individual with Plaintiff prior to her termination, and Plaintiff does not dispute that the identity of the individual was disclosed in another deposition. (Reply at pp. 1–2.) Plaintiff does not articulate any further testimony that needs to be elicited from Landers beyond the identity of the individual, already known. No further deposition need be compelled on this point.

Nor need there be any further deposition on the question of the investigation into Landers after Plaintiff’s termination. Plaintiff relies on the case WellPoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4^th 110, in which the court acknowledged that the contents of an investigation into employee wrongdoing could be privileged, but held that the privilege could be waived if the investigation is asserted as a defense. (Id. at p. 128–129.)[1] But the difficulty with this argument is that there has been no showing that Defendant asserts this investigation as a defense to Plaintiff’s claims in its answer or discovery responses. Plaintiff simply argues that “investigations of this nature are not privileged.” (Motion at p. 7.)

In reply, Plaintiff refines the argument to state that the investigation was not in the nature of an attorney preparing a defense for a client, but was rather that of a simple fact-finding mission. (Reply at pp. 2–3.) But Plaintiff’s own authority is against her on this point: The WellPoint court held that the privilege had adequately been invoked and supported by the Plaintiff’s concession that the investigator was “an attorney hired by [Plaintiff’s] employer to conduct an investigation of the charges of discrimination.” Wellpoint, supra, 59 Cal.App.4th at p. 123.) This being the case, the burden shifted to the party claiming the exception that “the claimed privilege does not apply or that an exception exists or that there has been an expressed or implied waiver,” and that the plaintiff “could not meet this burden by simply asserting in a supplemental memorandum of points and authorities that [the attorney] was engaged in a fact-finding mission.” (Id. at p. 123.) Plaintiff offers no argument for an exception to privilege except the bare assertion that this was a fact-finding investigation. (Reply at p. 3.)

The motion to compel is therefore DENIED as to Landers in its entirety.

Plaintiff also seeks to compel the further deposition of David Roberts, specifically regarding two issues: Roberts’s reason for terminating another City employee, Faye Moseley, who was in turn involved in the decision to terminate Plaintiff’s employment, and Roberts’ knowledge of the investigation into Sharon Landers, discussed above. The analysis above discussing the privileged nature of the Landers investigation applies with equal force to the Roberts motion, and no further deposition need take place on that subject.

Defendant in opposition argues that requiring Roberts to testify concerning the reasons for Moseley’s termination would impinge on the qualified deliberative process privilege. (Opposition at pp. 3–4.)

Under the deliberative process privilege, senior officials of all three branches of government enjoy a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated. The privilege rests on the policy of protecting the decision making processes of government agencies. The key question in every case is whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.

(Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1040, internal quotation marks and citations omitted.)

Defendant argues that the above privilege militates against disclosure of the reasons for Moseley’s termination because Moseley is engaged in litigation against Defendant for wrongful termination, and requiring testimony concerning her termination would prejudice ongoing settlement efforts in that case. (Opposition at p. 3.) This argument is unpersuasive. The interest justifying the deliberative process privilege is the government’s interest in candid discussion involving an agency’s decisionmaking process. Defendnat does not justify its claim of privilege in those terms, but argues that disclosure here might impede its defense in another action. It is unclear how disclosure of the reasons for Moseley’s termination in this action could meaningfully impinge upon Defendant’s decisionmaking processes, however, since the reasons for that termination are already be the subject of litigation and discovery in another action, much as the reasons for Plaintiff’s termination are the subject of discovery here.

Accordingly, the motion to compel deposition is GRANTED as to David Roberts, specifically as to the reasons for Faye Moseley’s termination of employment. The motions are otherwise DENIED.