Judge: Joel L. Lofton, Case: 22AHCV00045, Date: 2024-03-19 Tentative Ruling
Case Number: 22AHCV00045 Hearing Date: March 19, 2024 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: March 19, 2024 TRIAL
DATE: No date set.
CASE: ROB C. PUN, an
individual, v. MEGA BANK, a California Corporation; EDWARD LO, an individual,
JULIAN FONG, an individual, and DOES 1-80, inclusive.
CASE NO.: 22AHCV00045
MOTION
TO COMPEL DEPOSITION ANSWERS
MOVING PARTY: Plaintiff Rob C. Pun
RESPONDING PARTY: Defendant
Julian Fong
SERVICE: Filed August 17, 2023
OPPOSITION: Filed August 29, 2023
REPLY: Filed September 1, 2023
RELIEF
REQUESTED
Plaintiff moves for an order
compelling Defendant Julian Fong to answer deposition questions.
BACKGROUND
This case arises out of
Plaintiff Rob C. Pun’s (“Plaintiff”) claim that Defendants Mega Bank, Edward Lo
(“Lo”), and Julian Fong (“Fong”) wrongfully terminated his employment at Mega
Bank and engaged in wrongful and retaliatory conduct. Plaintiff alleges that on
December 1, 2016, he was hired by Lo to be the CFO of Mega Bank. Plaintiff
alleges that on September 23, 2021, he went on medical leave. He further
alleges that on September 27, 2021, he filed a Human Resources (“HR”) complaint
against Lo and Fong. Plaintiff alleges he was terminated on September 30, 2021,
while on medical leave.
Plaintiff filed this first amended
complaint (“FAC”) on April 28, 2022, alleging eight causes of action for (1)
relation, (2) discrimination on the basis of age, (3) hostile work environment,
(4) wrongful discharge in violation of public policy; (5) defamation – slander;
(6) unfair business practices; (7) intentional infliction of emotional
distress; and (8) harassment.
TENTATIVE RULING
Plaintiff’s motion to compel deposition answers is GRANTED.
Fong is ordered to provide responses to questions 1 through 34 and
38 through 53 at the resumption of his deposition.
Plaintiff’s
requests for sanctions is granted for a total of $2061.65 against Fong’s
counsel.
LEGAL STANDARD
Code of Civil Procedure section 2025.450, subdivision (a), provides: “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 under Section 2025.230, without having served a valid objection under
Section 2025.410, 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.”
Code of
Civil Procedure section 2025.450 subdivision (b) requires that any motion under
subdivision (a) set forth specific facts showing good cause and a meet and
confer declaration or, when a deponent fails to attend the deposition, a
declaration stating the moving party contacted the deponent to inquire about
the nonappearance.
“If a
deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing
under the deponent's control that is specified in the deposition notice or a
deposition subpoena, the party seeking discovery may move the court for an
order compelling that answer or production.” (Code Civ. Proc. § 2025.480, subd. (a).) “If the court
determines that the answer or production sought is subject to discovery, it
shall order that the answer be given or the production be made on the
resumption of the deposition.” (Code
Civ. Proc. § 2025.480, subd. (i).)
DISCUSSION
Overview
Plaintiff moves for an order compelling Defendant Julian Fong to answer
questions Fong, at the advice of counsel, refused to answer during his
deposition. Plaintiff provides that Fong appeared for deposition on June 20,
2023. (Espina Decl. ¶ 6.) Plaintiff provides that
Defendant refused to answer fifty-three questions. (Id. ¶ 7.)
At the deposition and in support of his opposition, Fong
contends that the objections were proper as the questions sought private or
irrelevant information. Fong also argues that Plaintiff’s counsel asked
questions pertaining to other cases and thus improperly sought to use Fong’s
deposition as a means to obtain other information.
Overview
of Grounds for Objections
Fong
primarily contends that Plaintiff’s questions were improper based on privacy
and relevance grounds.
“Unless otherwise
limited by order of the court in accordance with this title, any party may
obtain discovery regarding 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 either is itself admissible in
evidence or appears reasonably calculated to lead to the discovery of
admissible evidence. Discovery may relate to the claim or defense of the party
seeking discovery or of any other party to the action. Discovery may be
obtained of the identity and location of persons having knowledge of any
discoverable matter, as well as of the existence, description, nature, custody,
condition, and location of any document, electronically stored
information, tangible thing, or land or other property.” (Code Civ.
Proc. § 2017.010.)
The
California Constitution provides Californians with a right to privacy. (Cal.
Const., art. 1, section 1.) The California Supreme Court has held that “[t]he party asserting a
privacy right must establish a legally protected privacy interest, an
objectively reasonable expectation of privacy in the given circumstances, and a
threatened intrusion that is serious.” (Williams v. Superior Court (2017)
3 Cal.5th 531, 552 (“Williams”), citing Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 35.) “The party seeking information may
raise in response whatever legitimate and important countervailing interests
disclosure serves, while the party seeking protection may identify feasible
alternatives that serve the same interests or protective measures that would
diminish the loss of privacy. A court must then balance these competing considerations.”
(Id. at p. 552.)
“ ‘A “reasonable”
expectation of privacy is an objective entitlement founded on broadly based and
widely accepted community norms.’ ” (Sheehan v. San Francisco 49ers, Ltd. (2009)
45 Cal.4th 992, 1000.)
“Under the Legislature's ‘very
liberal and flexible standard of relevancy,’ any ‘doubts as to relevance should
generally be resolved in favor of permitting discovery.’ ” (Williams v.
Superior Court (2017) 3 Cal.5th 531, 542.) “[T]he party opposing
discovery has an obligation to supply the basis for this determination.” (Id.
at p. 549.)
Application
The above case law provides that
Defendant, as the objecting party, bears the initial burden of showing
sufficient grounds for the objections. Additionally, the scope of discoverable
information as it relates to relevancy is flexible. Thus, Fong’s objections
that Plaintiff sought irrelevant information are overruled. Fong argues that
because Plaintiff sought information pertaining to plaintiffs in other cases
that were filed by Plaintiff’s counsel and against same or similar defendants,
such information is irrelevant. However, Fong’s arguments are unavailing. Fong
fails to demonstrate how information related to other employees at the same
bank who may or may not have interacted with the same defendants and may be knowledgeable
about the pertinent facts are irrelevant to the present case simply because
they are named plaintiffs in other cases.
Similarly, Fong’s objections based
on privacy are largely unfounded. Fong, in response to many of the questions at
issue here, failed to meet the three prong requirements of the Hill
test. In many instances, Fong fails to even establish a legally protected
privacy interest. For example, in question 31, Plaintiff’s counsel asked “Since
Cathy Chen’s hire has her position and titled changed?” (Reply Separate
Statement at p. 56:17-18.) In response, Defendant’s counsel objected that it
infringed on privacy rights, citing the fact that third-parties had privacy
protected interests. However, Defendant wholly fails to identify what privacy
right is being infringed, that there was a reasonable expectation of privacy in
the circumstances, and that the question posed a serious threatened intrusion.
Further, in support of many of his objections, Fong argues that Plaintiff
already possessed the information at issue. (See, e.g., Reply Separate
Statement at p. 60:5-10.) However, that does not establish a valid privacy interest.
Thus, Plaintiff’s motion to compel
an answer to his deposition question is granted in accordance with this order.
Defendant is ordered to provide a response to questions 1-34 and 38-53.
Plaintiff’s motion is denied as to questions 35, 36, and 37.
Plaintiff also seeks sanctions for
the present motion.
“The court shall impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010)
against any party, person, or attorney who unsuccessfully makes or opposes a
motion to compel an answer or production, unless it finds that the one subject
to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.” (Code of Civ. Proc. § 2025.480, subd. (j).)
Plaintiff’s
requests for sanctions is granted for a total of $2061.65 (four hours worked at
$500 per hour at a rate of $61.65).
CONCLUSION
Plaintiff’s motion to compel deposition answers is GRANTED.
Fong is ordered to provide responses to questions 1 through 34 and
38 through 53 at the resumption of his deposition.
Plaintiff’s
requests for sanctions is granted for a total of $2061.65 against Fong’s
counsel.
Dated: September 12,
2023 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an email to the court
indicating their
intention to submit. alhdeptx@lacourt.org