Judge: Holly J. Fujie, Case: 21STCV06362, Date: 2023-04-03 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 21STCV06362    Hearing Date: April 3, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

This order concerns: (1) a motion for protective order/motion to quash deposition subpoena filed by Plaintiff (the “PO Motion”); and (2) a motion to compel the deposition of Beth Gunn (“Gunn”) filed by Defendant (“the MTC”) (collectively, the “Motions”).

            MOVING PARTIES: (1) Plaintiff; (2) Defendant

            RESPONDING PARTIES: (1) Defendant; (2) Plaintiff

            The Court has considered the moving, opposition and reply papers. 

BACKGROUND

This action arises out of an employment relationship.  The currently operative second amended complaint (the “SAC”) alleges: (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent, investigate and remedy harassment and discrimination; (5) whistleblower retaliation; and (6) reprisal/retaliation. 

The Motions both concern an ongoing dispute over Defendant’s ability to depose Gunn about her personal knowledge of Plaintiff’s claims based on her close friendship with Plaintiff that predates her current status as his attorney.  On January 31, 2023, Gunn was served with a deposition subpoena (the “Gunn Subpoena”) to appear for a deposition on February 21, 2023 and notice to consumer of a subpoena for Gunn’s employment records at her previous law firm, Ogletree Deakins (“Ogletree”) (the “Ogletree Subpoena”).   Gunn objected to the Gunn and Ogletree Subpoenas and did not appear for her deposition on February 21, 2023.  (Declaration of Jeffrey A. Payne (“Payne Decl.”) ¶ 4.)

EVIDENTIARY OBJECTIONS

            Plaintiff’s evidentiary objections are OVERRULED in their entirety.

DISCUSSION

Under California Code of Civil Procedure (“CCP”) section 2025.450, if, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party, without having served a valid objection, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.  (CCP § 2025.450, subd. (a).)  The motion must both: (1) set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice; and (2) include a meet and confer declaration pursuant to CCP section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.  (CCP § 2025.450, subd. (b)(1)-(2); see Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124 (the statute also applies when the deponent simply fails to appear).)

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion made by any person described in CCP section 1987.1, subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it or directing compliance with it upon those terms or conditions as the court shall declare.  (CCP § 1987.1, subd. (a).)

CCP section 2025.420 provides that a 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, subd. (b).)  The protective order may order any number of actions listed in CCP section 2025.420, subdivision (b).  In general, the court may order the deposition not be taken, limit the scope and length of depositions, and alter the methods of discovery.  (CCP § 2025.420, subd. (b)(1)-(b)(16).)

Standard for Deposing Opposing Counsel

Depositions of opposing counsel are presumptively improper, severely restricted, and require “extremely” good cause—a high standard.  (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562.  There are strong policy considerations against deposing an opposing counsel.  (Id.)  To effectuate these policy concerns, California applies a three-prong test in considering the propriety of attorney depositions.  (Id. at 1563.)  First, does the proponent have other practicable means to obtain the information?  (Id.)  Second, is the information crucial to the preparation of the case?  (Id.)  Third, is the information subject to a privilege?  (Id.)  The party seeking the deposition of opposing counsel has the burden of proof to establish the predicate circumstances for the first two prongs (i.e.: (1) whether the proponent has other practicable means to obtain the information; and (2) whether that information is crucial to the preparation of the case).  (Id.)  The party opposing the discovery has the burden of establishing the applicability of the attorney-client privilege and the work product doctrine in the third prong.  (Id.) 

Defendant argues that the heightened standard for allowing the deposition of opposing counsel does not apply to the present facts because Defendant only seeks Gunn’s testimony relating to her personal knowledge of this action during the time period prior to her representation of Plaintiff.  Defendant cites no caselaw that holds that the heightened standard only applies to discovery requests concerning the time period prior to the representation.  Out of an abundance of caution and in light of the overall policy concerns underlying the restrictions on the right to depose opposing counsel, the Court finds that it is appropriate to require that Gunn’s deposition be supported by “extremely good cause.”

The Court finds that several of the identified subjects for Gunn’s deposition concern potential evidence that Plaintiff filed this action for an improper purpose, which is not relevant to the actual merits of the claims in the SAC.  Defendant does establish, however, that Plaintiff’s personal knowledge of Plaintiff’s health and of Plaintiff’s potential racial biases are necessary to their defense because her testimony may lead to admissible evidence that impeaches Plaintiff’s evidence that he was subjectively affected by Defendant’s allegedly harassing conduct and that Plaintiff’s medical conditions occurred as a result of the wrongful conduct alleged in the SAC.  (See Payne Decl. ¶ 16, Exhibit I.)

The Court further finds that the Ogletree Subpoena is justified insofar as it seeks documents that may show Gunn’s involvement in the Hudson Litigation.  The Court finds that Plaintiff’s argument that Defendant waived its right to seek to disqualify her based on her prior employment with Ogletree is not supported, as Defendant recently learned that Plaintiff told two witnesses that he was friends with an attorney working at the law firm working on the Hudson Litigation.  (See Payne Decl. ¶ 8.)

The Court therefore GRANTS the MTC in part, subject to the limitations that: (1) Gunn’s deposition be limited to her knowledge of Plaintiff’s health and his attitudes towards individuals of different races; and (2) the Ogletree Subpoena be limited to records concerning the Hudson Litigation.  The Court therefore GRANTS the MPO in part, consistent with the foregoing limitations.  Gunn’s deposition is to take place within two weeks of this order, and this order does not restrict Gunn’s ability to assert valid objections during the deposition.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person.  The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.  This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

    Dated this 3rd day of April 2023