Judge: H. Jay Ford, III, Case: 21SMCV01577, Date: 2023-03-23 Tentative Ruling

Case Number: 21SMCV01577    Hearing Date: March 23, 2023    Dept: O

Case Name:  Klein v. Bernardo, et al.

SUBJECT:                 MOTION FOR PROTECTIVE ORDER, OR IN THE ALTERNATIVE, MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA TO CHARLES E. YOUNG

MOVING PARTY:   Defendants The Regents of the University of California and Antonio Bernardo

RESP. PARTY:         Plaintiff Gordon Klein

TENTATIVE RULING

            Defendants The Regents of the University of California and Antonio Bernardo’s Motion for Protective Order, or in the alternative, Motion to Quash Plaintiff’s Deposition Subpoena to Charles E. Young is DENIED.

            Defendants move for a protective order under CCP §1987.1 or an order quashing the subpoena under CCP §2025.420.  “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.”  CCP §2025.420(a).  “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.”  CCP §2025.420(b). 

            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 Elec. Co. v. Sup.Ct. (Grayson) (1997) 16 Cal.4th 1101, 1110; Nativi v. Deutsche Bank Nat'l Trust Co. (2014) 223 Cal.App.4th 261, 318 (burden not met by “entirely conclusory” declaration that “lacked any factual specificity”). 

            Defendants fail to establish any grounds to issue a protective order.  Young admittedly communicated with Bernardo, a defendant in this case, and current Chancellor Block, an agent of UCLA, regarding UCLA’s handling of the controversy surrounding Plaintiff’s response to his student and the basis for taking the actions UCLA did against Plaintiff.  Young communicated with Defendants about the precise controversy alleged in this case.  Young demanded an explanation and justification for UCLA’s actions against Plaintiff.  Plaintiff’s claims are based on his allegation that UCLA’s actions were unjustified. 

The deposition of Young satisfies the broad scope of permissible discovery under CCP §2017.010—“any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter is either itself admissible in evidence or appears reasonably calculated to lead to the discovery admissible evidence.”  “The statutory phrase ‘subject matter’ is ‘broader than the issues’ and is not limited to admissible evidence.  For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.  Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence.  These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.”  Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 590–591.  At the very least, the deposition of Young is reasonably calculated to lead to admissions by Bernardo and Block regarding UCLA’s justification for its actions in response to publication of Plaintiff’s response to his student’s request. 

Defendants mistakenly focus on Young’s tenure as Chancellor of UCLA from 1968-1997 and his lack of personal involvement in UCLA’s decision-making challenged in this action.  Defendants argue Young’s personal opinion on the matter is also irrelevant and inadmissible.  Plaintiff has never maintained that Young’s deposition was prompted by his work as Chancellor of UCLA.  Plaintiff has always stated that it was Young’s personal communications with Bandero and Block about the precise events alleged in this action that prompted the deposition subpoena.  For these same reasons, Plaintiff’s deposition subpoena does not seek an “apex” deposition regardless of whether that rule even applies to a former executive.

Likewise, Defendants fail to establish that the deposition proposed by Plaintiff—maximum of two hours on the extremely limited subject matter of Young’s communications with Bandero and Block on the events alleged in this FAC—would result in “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  CCP §2025.420(b).  Defendants also fail to establish that an order to quash “may be appropriate to protect [Young] from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”  CCP §1987.1(a). 

Defendants’ Motion for Protective Order, or in the alternative, Motion to Quash Plaintiff’s Deposition Subpoena to Charles E. Young is DENIED.