Judge: Joseph Lipner, Case: 22STCV35706, Date: 2023-08-24 Tentative Ruling

Case Number: 22STCV35706    Hearing Date: August 24, 2023    Dept: 72

            Plaintiffs’ motion for protective order with appointment of judicial referee is denied. The competing requests for monetary sanctions are both denied.   

            Both parties are admonished to behave professionally and civilly during depositions.  Failure to abide by these fundamental rules may lead to the imposition of sanctions.  Moreover, defense counsel made a single disruptive speaking objection in the deposition and a single improper instruction not to answer and is admonished to refrain from doing so in future depositions. 

There have been an undue number of discovery disputes in this action.  The parties are admonished to resolve discovery disputes cooperatively.  The parties are ordered to discuss and attempt to resolve any discovery disputes either in person or by phone or video conference for no less than half an hour before bringing a discovery dispute to the Court’s attention. The Court is available for informal discovery conferences if further issues arise and cannot be resolved by the parties during the in-person, phone, or video conference. 

Background

            On November 10, 2022, Plaintiff Tabitha McClain and Justin Crosby (collectively, “Plaintiffs”) filed this lawsuit alleging violation of the Song-Beverly Act exclusively against Defendant Mitsubishi Motor North America, Inc. (“Defendant”). Plaintiff purchased a new 2022 Mitsubishi Outlander VIN: JA4J3UA85NZ021186 (“Subject Vehicle”) on September 17, 2021.

            On May 9, 2023, the Court granted Plaintiffs’ motion to compel the deposition of Defendant’s customer service representative associated with case # 02629485 with production of documents.

            On June 6, 2023, the Court granted the stipulation and order for protective order re: confidential and highly confidential designations.

            On July 12, 2023, Plaintiffs filed this motion for protective order with appointment of discovery referee. On August 11, 2023, Defendant filed an opposition. On August 17, 2023, Defendant filed a reply.

Legal Standard

A.    Protective Order

Protective orders may be granted on motion of the deponent or any party, or any third person who could be affected by the disclosure (e.g., a nonparty whose privacy would be impaired). (Code Civ. Proc. §2025.420(a).) 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.) Such a showing is not necessary, however, where the moving party is “presumptively entitled to a protective order” – i.e., where a defendant is asked questions regarding his or her net worth in an action for punitive damages. (Weil & Brown, Civil Procedure Before Trial, &8:691.)

B.    Judicial Referee

The court has power to appoint a referee to supervise the deposition, if necessary, to hear and determine any and all discovery motions and disputes relevant to discovery in the action, and to report findings and make recommendations thereon. (Code Civ. Proc. § 639(a)(5); Jogani v. Jogani (2006) 141 Cal. App. 4th 158, 176.) Under section 639(d), all appointments of referees pursuant to this section shall be by written order and shall include the following: “When the referee is appointed pursuant to paragraph (a)(5), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.”

Discovery referees are improper in routine matters. (See Hood v. Superior Court (1999) 72 Cal. App. 4th 446, 449, n. 4.) “Exceptional circumstances” are required to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon. (Code Civ. Proc. §639(d)(2).) Circumstances are “exceptional,” for instance, where there are multiple issues to be resolved, where multiple motions will be heard simultaneously, where many complicated motions are filed, and generally, where there are numerous and voluminous documents to be reviewed which make the inquiry “inordinately time consuming.” (Taggares v. Superior Court (1998) 62 Cal. App. 4th 94, 105.) In addition, a discovery referee may be appointed to monitor depositions where antagonism between the parties and/or counsel might otherwise prolong the proceedings and frustrate discovery. (Cal. Practice Guide: Civ. Proc. Before Trial, ¶ 8:1804.5.) “Where either party anticipates that the other will try to frustrate legitimate discovery at a deposition, the referee’s presence can curtail such conduct.” (Id.., ¶ 8:873.)

Discussion

A.    Meet and Confer

A motion for protective order must be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve the matter outside of court. (Code Civ. Proc. § 2025.420(a).)

Here, in terms of their efforts to meet and confer, Plaintiffs advance the declaration of their counsel, Elizabeth Quinn. Following the abrupt end of the court-ordered deposition of Michael Sparks on June 27, 2023, Plaintiffs’ counsel sent a meet and confer letter to Defendant’s counsel on Jun 27, 2023. (Quinn Decl. ¶ 12, Exh. 2.) Within this letter, Plaintiffs counsel summarized what occurred during the deposition of Mr. Sparks and proposed the inclusion of a discovery referee at all future deposition sessions in this case. (Ibid.) Plaintiffs’ counsel requested a response by July 5, 2023 or else court intervention would be sought. (Id.) On July 5, 2023, Defendant’s counsel responded by indicating that he was evaluating the request and stated that a further response would be provided by the following week. (Quinn Decl. ¶ 13, Exh. 3.)

In opposition, Defendant argues that this meet and confer attempt does not satisfy the “good faith” requirement because Plaintiffs failed to wait for Defendant’s response or even for the subject deposition transcript to be completed before filing the instant motion. (Opposition at pp. 6-7.)

In reply, Plaintiffs assert that the meet and confer requirement had been satisfied because Defendant never substantively responded to the initial meet and confer letter and did not provide any response until filing its opposition to the instant motion. (Reply at pg. 2.) However, this explanation is not persuasive because it is the moving party’s burden to show that the meet and confer requirement has been satisfied. Considering a motion for protective order does not have a strict deadline and simply must be filed promptly (Code Civ. Proc. § 2025.420(a)), it cannot be found that Plaintiffs met and conferred reasonably and in good faith by simply sending a letter. After all, Plaintiffs did not wait until the subject deposition transcript had been completed or followed up with Defendant to determine its position on the request for the presence of a discovery referee at future depositions before seeking court intervention. For this reason, the Court finds that Plaintiffs have failed to meet and confer in good faith. Nevertheless, the Court shall address this matter on its merits.

B.    Merits

Plaintiffs move for a protective order requiring the presence of a discovery referee at subsequent depositions in this case based on conduct that transpired during the court-ordered deposition of Michael Sparks on June 26, 2023.

As framed by Plaintiffs’ counsel, the subject deposition began with tension between the opposing attorneys after Defendant’s counsel sent by email the document production several minutes before the start of Mr. Spark’s deposition. (Quinn Decl. ¶  6.) There was also confusion as to whether the subject deposition would be subject to the stipulated protective order. Plaintiffs’ counsel maintained that the subject deposition was pursuant to a court order, which was silent to any protective order. (Ibid.)  By contrast, Defendant’s counsel asserted that stipulated protective order was signed after the court ordered the subject deposition and that Defendant was entitled to designate portions of the deposition confidential.

Plaintiffs’ counsel further attests that Defendant’s counsel loudly and angrily spoke to her before the start of the deposition, which was not captured by the court reporter. (Quinn Decl. ¶ 7.) Further, Plaintiff’s counsel claims that Defendant’s counsel “obstructed the deposition process by making improper speaking objections to coach the witness to the point that the witness stopped answering questions every time Mr. Ruggerello objected and made speaking objections.” (Id. at ¶ 9.) She further attests that Defendant’s counsel made the false assertion that she had threatened the deponent. (Ibid.) Following this conduct, Plaintiff’s counsel took a break, and when she returned, she suspended the deposition for purposes of seeking the appointment of a discovery referee at future depositions. (Id. at ¶¶ 10-11.)

In opposition, Defendant points to the transcript of the subject deposition to show that Plaintiff’s counsel claim of its counsel making “speaking objections” and coaching the witness were false. (Opposition at pg. 4, Ruggerello Decl. ¶¶ 3-4, Exh. A.) In terms of the aforementioned threat, Defendant asserts that Plaintiffs’ counsel intimidated the witness by stating that this was a court-ordered deposition after she was not satisfied with the witness’s answer to a prior question. (Motion at pg. 4, Ruggerello Decl., Exh. A at pp. 20:25-21:2.) Thus, Defendant argues that Plaintiffs have failed to establish good cause to support the issuance of a protective order or for the appointment of a discovery referee. (Opposition at pp. 5-6.)

In reply, Plaintiffs maintain that there is good cause for the protective order and for the appointment of a discovery referee because Defendant’s counsel obstructed Plaintiffs from taking the court-ordered deposition, asserting a false statement that Plaintiffs’ counsel was threating the witness, and for violating the California Guidelines of Civility § 9(a)(3),(6) and (8). (Reply at pg. 3.)

Upon review of the parties’ arguments and the subject deposition transcript, the Court does not find that a protective order or the use of a discovery referee is necessary at this juncture. First, with regard to conduct that occurred prior to the start of the deposition, it appears that any tension was the result of confusion between the opposing counsels as to whether the stipulated protective order applied to the subject deposition. Moreover, considering the individuals at this deposition were appearing remotely, it is unclear whether Defendant’s counsel’s purported body language was in fact aggressive or violated general guidelines of civility between attorneys.

Second, Defense counsel did on a single occasion use an improper speaking objection and then an improper instruction not to answer.  When asked about the outcomes of doing reviews of open cases as a case manager, Mr. Sparks answered that “it would depend case by case. There’s no set outcome.” (Opposition, Ruggerello Decl, Exh. A at pp. 18:21-19:5.) Plaintiff’s counsel then asked follow-up questions as to what Mr. Sparks would do when he reviewed a case, and to these reiterated questions, Defendant’s counsel objected on the grounds of vagueness and ambiguousness. Mr. Sparks restated his prior answer. (Id.at pg. 19:6-21.) It was after Plaintiffs’ counsel attempted to elicit a further explanation did Defendant’s counsel interrupt the deposition by stating that the question should be reformulated. (Id.at pp. 19:22-20:10.)  The Defendant’s speechifying at pages 19:25-20:10 was disruptive and not appropriate.  Speeches by counsel defending witnesses at the deposition must be avoided in the future.  But this one instance does not provide grounds for a discovery referee, or even reasonable grounds for suspending the deposition.

Soon afterwards, when Plaintiffs’ counsel inquired whether a “yes” or “no” answer could be given, Defendant’s counsel interjected by telling Mr. Sparks that he does not have to use “yes” or “no” responses, advising him to answer the questions as he saw fit and stating that the witness would not answer. (Id. at pg. 20:19-23.)  It was not proper for defense counsel to instruct not to answer this question but this, too, is not grounds for a discovery referee or for suspension of the deposition.

Third, with regard to Plaintiffs’ assertion that Defendant’s counsel falsely claimed that Plaintiff’s counsel threatened Mr. Sparks, the Court finds that this is also insufficient to support the requested relief. As indicated in the transcript, following the remarks regarding “yes” or “no” answers, Plaintiff’s counsel stated, “But, Mr. Sparks, just so you understand, this is a court-ordered deposition and plaintiffs are entitled to find out about your role.” (Id. at pp. 20:25-21:2.) This led the counsels to disagree whether this constituted a threat. (Id.at pg. 21:3-23.) As phrased, Plaintiffs’ counsel’s statement could have easily been misinterpreted. While the Court does not find that she did not intend to threaten the witness, it is conceivable why Defendant’s counsel had a different interpretation based on the repetitive questions being asked and the belief that Plaintiffs’ counsel was trying to elicit specific answers from Mr. Sparks. Nevertheless, the Court admonishes the parties’ counsels for their respective conduct during this deposition, but it trusts that both counsels will treat each other in a civil manner in the future that avoids a breakdown in future depositions.

Accordingly, because Plaintiffs have not established good cause for the requested relief or shown evidence of exceptional circumstances, the Court denies Plaintiffs’ motion for protective order with appointment of discovery referee. 

C.    Sanctions

The court “shall” impose monetary sanctions against whichever party loses on the motion for protective order unless it finds that party acted “with substantial justification” or other circumstances render sanctions “unjust.” (Code Civ. Proc. § 2025.420(d).) Section 2025.420(d) applies “to any person,” whether a party or not, who moves unsuccessfully for a protective order. Thus, a nonparty who is denied a protective order is subject to sanctions. (Brun v. Bailey (1994) 27 Cal. App. 4th 641, 658-659.)

Because the instant motion has been denied, the Court also denies Plaintiffs’ request for monetary sanctions against Defendant and its counsel of record. In opposition, Defendant seeks monetary sanctions against Plaintiffs and their attorney of record for brining this unsuccessful motion. (Opposition at pg. 7.) However, the Court finds that sanctions would not be appropriate against Plaintiffs or their attorney because they acted with substantial justification, as there was a concern whether future depositions would result in similar difficulties.

Accordingly, both requests for monetary sanctions are denied.