Judge Holly J. Fujie, Case 21STCV42481 2022-09-30 Tentative Ruling

MOVING PARTY: Plaintiffs/Cross-Defendants Dr. Payam Vahedifar (“Mr. Vahedifar”) and Shadi Vahedifar (“Ms. Vahedifar”) (collectively, “Plaintiffs”)

RESPONDING PARTY: Defendants/Cross-Complainants Nina Hunt and S&A Realty Corp. (collectively, “Broker Defendants”)

This action arises out of a landlord/tenant relationship. Plaintiffs’ complaint (the “Complaint”) alleges: (1) violation of Civil Code section 1950.5; (2) statutory fraud or deceit and common law fraud; (3) intentional misrepresentation; (4) negligent misrepresentation; (5) fraudulent concealment; (6) negligence; (7) negligence per se; (8) conversion; (9) breach of fiduciary duty; (10) breach of contract; (11) breach of the implied covenant of good faith and fair dealing; (12) violation of Business and Professions Code section 17200 et seq; (13) intentional infliction of emotional distress; (14) negligent infliction of emotional distress; (15) unjust enrichment and restitution; (16) intentional interference with contractual relations; and (17) conspiracy to breach contract and to interfere with contractual relations.

On August 8, 2022, Plaintiffs filed a motion for a protective order and appointment of a discovery referee (the “Motion”). The Motion seeks a protective order that allows their respective depositions to proceed only upon the appointment of a discovery referee. The Motion also requests monetary sanctions in the amount of $3,000 against Broker Defendants’ counsel.

Under California Code of Civil Procedure (“CCP”) section 2025.420, subdivision (a), 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.¿ (CCP § 2025.420,¿subd. (a).)¿ For good cause shown, the court 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).)¿ CCP section 2025.420, subdivision (b) sets forth a nonexclusive list of directions that may be included in a protective order, including orders directing that the deposition may not be taken at all or that the deposition be taken at a different time. (See id.) The issuance and formulation of protective orders are to a large extent discretionary, and a ruling on such motions will not be disturbed absent abuse of discretion. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316-17.)

As a preliminary matter, upon review of the moving, opposition and reply papers, in light of what appears to be an ongoing pattern of outward animosity between the parties’ counsel, the Court finds that Plaintiffs have satisfied the meet and confer requirement for seeking a protective order. (See CCP 2025.420, subd. (a).)

Plaintiffs argue that a protective order and discovery referee are warranted due to Broker Defendants’ counsel’s repeated questions regarding privileged matter as well as her hostility toward both Ms. Vahedifar and Plaintiffs’ counsel. In support of the Motion, Plaintiffs’ counsel, Siamak Pishvaee (“Pishvaee”) declares that during and throughout Ms. Vahedifar’s deposition on August 9, 2022, Broker Defendants’ counsel Tami Kay Lee (“Lee”) spoke aggressively to both Pishvaee and Ms. Vahedifar. (See Declaration of Siamak Pishvaee (“Pishvaee Decl.”) ¶¶ 8-9.) For example, during questioning, Lee called Ms. Vahedifar “Shady” and subsequently asked clarification for the correct pronunciation of Ms. Vahedifar’s first name. (Pishvaee Decl. ¶ 9; Declaration of Shadi Vahedifar (“Ms. Vahedifar Decl.”) ¶ 7.) Pishvaee raised approximately two to five objections to Lee’s questions on grounds of marital privilege and instructed Ms. Vahedifar not to answer questions concerning her conversations with Mr. Vahedifar. (See Pishvaee Decl. ¶ 9; Ms. Vahedifar Decl. ¶ 10.)

Broker Defendants vigorously dispute the characterization of the underlying facts and the legal scope of Plaintiffs’ objections based on marital privileges. (See generally Declaration of Tami Kay Lee (“Lee Decl.”).) Broker Defendants argue that Pishvaee’s own hostility, unprofessionalism, and assertion of baseless privileges throughout Ms. Vahedifar’s deposition prevented Lee from obtaining discoverable evidence. (See id.)

There are three marriage privileges. First, a witness spouse has a privilege not to testify against the other spouse. (Evid. Code § 970.) Second, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege. (Evid. Code § 971.) Finally, a spouse, whether or not a party, has a privilege during the marriage and afterwards to refuse to disclose and to prevent another from disclosing a communication made in confidence with the other spouse while they were spouses. (Evid. Code § 980.)

The privilege not to testify at all under Article 4 of the Evidence Code and the privilege not to testify to privileged communications under Article 5 of the Evidence Code are two entirely separate and distinct privileges. (People v. Dorsey (1975) 46 Cal.App.3d 706, 717.) Under Article 4, there are two types of privilege; a spouse’s privilege not to testify against their spouse (Section 970) and a privilege not to be called as a witness against a spouse (Section 971). (Id. at 716.)

The marital communications privilege of Evidence Code section 980, which provides that a spouse, whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or her and the other spouse while they were spouses falls, however, under Article 5. (See Evid. Code § 980.) The privilege against disclosure of privileged communications is vested in each spouse and consequently if a spouse is called as a witness he or she may not testify as to confidential communications without his or her consent and the consent of the other spouse. (People v. Dorsey, supra, 46 Cal.App.3d at p. 717.) The privilege survives the termination of the marriage and continues to exist even though the marriage has been terminated by divorce. (Id.)

Without determining the validity of Plaintiffs’ objections on the basis of Article 4 marital privileges, a review of the deposition transcript plainly demonstrates that Pishvaee asserted objections to questions concerning conversations between Ms. Vahedifar and Mr. Vahedifar. (See, e.g., Lee Decl., Exhibit 1 at 17:25-18:3.) The Court also notes that while it raises arguments concerning the applicability of marital privileges to this action pursuant to Evidence Code section 973, subdivision (b), the Opposition ignores the provision’s specification that it applies solely to privileges arising under Article 4 of the Evidence Code. (See id.) Further, the Opposition does not raise arguments regarding exceptions to the privilege provided for under Evidence Code section 980. Broker Defendants have thus not demonstrated that Plaintiffs are seeking a protective order based on meritless privilege objections.

Where the parties do not consent, the court may, upon motion of a party, appoint a referee to hear any and all discovery motions and disputes, and who shall make findings and recommendations thereon. (CCP §639, subd. (a)(5).) In such situations, the appointment of a discovery referee requires a court finding of exceptional circumstances. (CCP § 639, subd. (d)(2).) Absent agreement of all parties, courts may not make blanket referrals, except in the unusual case where a majority of factors favor reference, including: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming. (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105.) Where one or more of the above factors unduly impact the court’s time and/or limited resources, the court is clearly within its discretion to make an appropriate reference. (Id. at 106.)

Upon review of the transcript of Ms. Vahedifar’s deposition included with the opposition and reply papers, the Court observes that Pishvaee and Lee were mutually disruptive and argumentative throughout the deposition in a manner that was not limited to disputes between adversarial parties over legal issues and that often devolved into personal attacks. The Court finds, however, that notwithstanding the acrimony between counsel, Plaintiffs have not demonstrated exceptional circumstances that require the appointment of a discovery referee at this time.

While the Court presently declines to appoint a discovery referee, the Court finds that the circumstances warrant the issuance of a protective order that places certain constraints on Plaintiffs’ depositions. The Court exercises its discretion pursuant to Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316-17 and will enter a protective order as follows:

1. Ms. Vahedivar’s deposition is to proceed on a mutually agreeable date within the next thirty days. The parties may thereafter select a mutually agreeable date to hold Mr. Vahedivar’s deposition.

2. The parties’ attorneys are to conduct themselves in a civil and professional manner.

3. Neither party is to adjourn the deposition on the basis of harassing conduct by opposing counsel.

Furthermore, the Court notes that Broker Defendants are not precluded from filing a motion to compel further responses should they dispute the applicability of any privileges Plaintiffs assert. Nor are Plaintiffs precluded from seeking sanctions against Lee to the extent that they argue that Broker Defendants’ Opposition contains misstatements of fact. Finally, the parties are not foreclosed in the future from filing a motion requesting that the Court appoint a discovery referee should discovery disputes remain ongoing.

The Court therefore GRANTS the Motion in part as set forth herein. In light of this ruling, the Court respectfully declines to award monetary sanctions against Plaintiffs or Broker Defendants.

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.

Hon. Holly J. Fujie

Judge of the Superior Court