Judge: H. Jay Ford, III, Case: 21SMCV00405, Date: 2024-05-23 Tentative Ruling

Case Number: 21SMCV00405    Hearing Date: May 23, 2024    Dept: O

Case Name:  Scannell, et al. v. Samek, et al.

SUBJECT:                 MOTION FOR PROTECTIVE ORDER

MOVING PARTY:   Defendant/Cross-Defendant Edward Victor Samek

RESP. PARTY:         Plaintiff Matthew Scannell, individually and as Trustee of the Glenlochy Trust and ROE 1

TENTATIVE RULING

            Defendant/Cross-Defendant Edward Victor Samek’s Motion for Protective Order is GRANTED in part and DENIED in part.

                        Samek moves for a Protective Order pursuant to California CCP § 2025.420 to have Samek’s deposition proceed via Zoom and to limit the scope of the deposition and the documents sought pursuant to the Request for Production of Documents included within the Deposition Notice.

            A party “is entitled to discover any non-privileged information, cumulative or not, that may reasonably assist it in evaluating its defense, preparing for trial, or facilitating a settlement. Admissibility is not the test, and it is sufficient if the information sought might reasonably lead to other, admissible evidence.”  (TBG Insurance Services Corp. v. Superior Court (2002) 96 Cal.App.4th, 443, 448.)  The burden is on the moving party to establish “good cause” for whatever relief is requested. Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in the discovery procedure clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Emerson Electric Co. v. Superior Court (1997) 16 Cal. 4th 1101, 1110.)

The only evidence offered in support of the motion is Samek’s counsel’s declaration. In her declaration  Ms. Morovati states:

 “6. Many of the requests contained in the Notice seek information wholly irrelevant to the matters germane to the claims pled against Samek and are an invasion of Samek’s privacy. The scope of the requests are intended to cause Samek unwarranted annoyance, embarrassment, oppression, or undue burden and harassment. Based on the scope of the requests and Plaintiffs’ counsel’s statement that Samek’s deposition would last at least seven (7) hours, I anticipate that the scope of the deposition will not be limited to the matters that are relevant to the claims pled against Samek but instead will be broadened so as to cause undue harassment and an undue burden to Samek.”

Ms. Morovati, however, does not offer any evidence to support such conclusions, or show how she has personal knowledge that the requested documents contain private information.  No does she offer any evidence showing her personal knowledge of the specific time and cost that would be incurred to produce such documents that makes compliance with the requests unduly burdensome.

            Remote Appearance at the Deposition

            California Rules of Court, Rule 3.1010(a) provides that any party may take an oral deposition by telephone, videoconference, or other remote electronic means. CCP § 2025.310(b) provides that any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent. While videoconference depositions were necessary during the COVID-19 pandemic, Samak fails to show appearing remotely is necessary. Samek’s request for the deponent to appear for the deposition remotely is DENIED.

            Scope of Questioning

Samek seeks to narrow the line of questioning “to what Samek did or did not do while he owned the property that abutted Plaintiffs’ property, which allegedly resulted in a nuisance and/or trespass”. (Motion, 4:5-8.) Samek makes this request in anticipation of a much broader line of questioning in light of the documents Plaintiffs requested and because Plaintiffs’ counsel indicated that the deposition is expected to last at least seven hours. The Court finds the limited scope to be too narrow.  It could reasonably cover not only everything that Samek did or did not do, but also cover everything that he knew and when he knew it about the property as well as everything he told or heard from from anyone concerning the condition of the property or his marketing and sale of the property.  Samek’s request to narrow the scope of the deposition questions is DENIED.

Production of Documents

The crux of the parties’ dispute lies within Plaintiffs’ request for production of documents. According to Samek, the parties agreed that documents would be produced with limitations to Request No. 7. No agreement was reached between the parties with respect to Request Nos. 1-3, 10-16, 18-19, and 21-22. (Reply, 4:12-14.)  A party “is entitled to discover any non-privileged information, cumulative or not, that may reasonably assist it in evaluating its defense, preparing for trial, or facilitating a settlement. Admissibility is not the test, and it is sufficient if the information sought might reasonably lead to other, admissible evidence.”  (TBG Insurance Services Corp. v. Superior Court (2002) 96 Cal.App.4th, 443, 448

Generally, Samak’s objections on the grounds the documents sought are not relevant are overruled.  Similarly, Samek’s objections that the request are therefore harassing and unduly burdensome are overruled. 

Request no. 1

(“All DOCUMENTS regarding the sale of the LLOYDCREST PROPERTY to Defendant/Cross-Complainant Dina Smaili in or about June 2021, including agreements, contracts, offers, counter-offers, reports, emails, text messages, and disclosures.”)  Samek contends that this request violates his privacy rights because it seeks financial information, including banking records.  If so, Samek may withhold the production provided Samake specifically identifies the documents that contain private financial or banking information in a privilege log that is to be served before the deposition.  Otherwise, Samek’s objections are overruled.

Request nos. 2 and 3

(“All COMMUNICATIONS between SAMEK and Carl Gambino” and “between SAMEK and Compass California, Inc. regarding the LLOYDCREST PROPERTY, including all text messages.”)

Samek contends that Compass, whom Mr. Gambino is employed by, has already produced documents regarding the sale of the Property, including documents pertinent to the disclosures made. Samek contends that production of the text messages is violative of both Samek’s and Mr. Gambino’s privacy rights. Samek does not offer any competent evidence to show the text messages between Samek contain private information, or that they are harassing, or any evidence the production of such messages would cause undue burden.   Samek’s objections are overruled.

Request nos. 10 and 11

(“All DOCUMENTS, including all text messages and other COMMUNICATIONS, exchanged between SAMEK and any arborist since January 1, 2010, regarding the LLOYDCREST PROPERTY” and “the SCHUYLER PROPERTY”)

            Samek purchased the property in 2010. Plaintiffs alleged in their FAC that they started noticing problems with the Lloydcrest Property in 2012. (FAC ¶ 12.) Plaintiffs notified Samek of the problems in 2018. (FAC ¶ 17.) Samek seeks to limit the time frame of these requests to the period of 2015 to June 2021, when Samek sold the property.  Again, Samak has failed to make any evidentiary showing why the requests should be limited to 2015 and thereafter.  Again, Samek’s objections are overruled.

Request nos. 12 and 13

(“All DOCUMENTS which evidence any and all CONSTRUCTION done on the LLOYDCREST PROPERTY in 2020” and “in 2021, including but not limited to, receipts, contract agreements, construction schedules, and cost estimates, permits, emails, text messages, notices, photographs, and video recordings.”)

Samek objects to these requests to the extent they include documents relating to landscaping and gardening. The main issue in this lawsuit is a tree that Plaintiffs contend caused various issues on their property. Documents regarding landscaping and gardening are directly relevant to the allegedly dangerous conditions on the hillside of the Property.

Samek’s motion for protective order is denied as to these requests.

Request no. 14, 15, 16

(“All reports prepared by any inspector regarding the LLOYDCREST PROPERTY from 2007 to the present.”)  (“All reports prepared by any contractor” or “engineer regarding the LLOYDCREST PROPERTY from 2007 to the present.”)

Plaintiffs contend that the timeframe going back to 2007 is relevant because the property was listed for sale several times from 2007 to the present date and these inspections are pertinent to ascertaining the condition of the property at the time of the listings. Again, Samak has failed to make any evidentiary showing Again, Samak has failed to make any evidentiary showing why the production of these documents would be unduly burdensome.  Again, Samek’s objections are overruled.

Request no. 18

(“All DOCUMENTS regarding any plans, permits, reports in regard to maintenance or repair of the LLOYDCREST PROPERTY between January 1, 2018 through December 31, 2021.”)

Samek contends this request is overbroad and encompasses repairs made to the inside of the house, which are irrelevant.” Samek seeks to limit this request to the hillside at issue. Plaintiffs contend that documents regarding repairs done to the inside of the house can be relevant if they contributed to the dangerous conditions on the hillside. Again, Samak has failed to make any evidentiary showing why the production of these documents would be unduly burdensome.  Again, Samek’s objections are overruled.

Request no. 19

(“All DOCUMENTS which evidence any CONSTRUCTION done on the HILLSIDE, including but not limited to the building and/or repair of any retaining walls, and including construction receipts and permits.”)

Again, Samak has failed to make any evidentiary showing why the time of the requested documents should be limited or how the production of these documents would be unduly burdensome.  Again, Samek’s objections are overruled.

Request nos. 21 & 22

(“All DOCUMENTS which evidence any bids or estimates SAMEK obtained to perform tree trimming” or “to remove any trees at the LLOYDCREST PROPERTY at any time from 2012 to present.”)

Again, Samak has failed to make any evidentiary showing why the time of the requested documents should be limited or how the production of these documents would be unduly burdensome.  Again, Samek’s objections are overruled