Judge Lee S. Arian, Case Number: 21STCV37594, Date: 2024-01-31 Tentative Ruling

Judge: Lee S. Arian, Case: 21STCV37594, Date: 2024-01-31 Tentative Ruling

Case Number: 21STCV37594 Hearing Date: April 12, 2024 Dept: 27

HON. LEE S. ARIAN

DEPARTMENT 27

TENTATIVE RULING

Hearing Date: 4/12/2024 at 1:30 p.m.

Case No./Name: 21STCV37594 ANNA VASERFIRER, et al. vs UBER TECHNOLOGIES

Motion: MOTION FOR PROTECTIVE ORDER

Moving Party: Defendant Avis Rent A Car System

Responding Party: Plaintiff

Notice: Sufficient

Ruling: MOTION FOR PROTECTIVE ORDER IS DENIED.

On October 12, 2021, Plaintiff filed the current auto accident case. On February 20, Plaintiff sent Defendant Avis a deposition subpoena for the custodian of records and requested various document production at the deposition. On March 1, 2024, Defendant noticed Plaintiff’s PMK depositions on 5 different categories and requested document production. Defendant now moves the Court for a protective order.

As a preliminary issue, deposition subpoenas to the custodian of records are directed at non-parties. (See Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 576–577; CCP § 2020.010.) If Plaintiff seeks documents, it is through a request for production under CCP § 2031.010. Plaintiff can also depose Defendant’s PMK on categories related to Defendant’s policies in managing the documents. This can be accomplished through a notice of deposition without the need for a subpoena.

A motion for a protective order “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2030.090.) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a¿serious attempt¿to obtain an informal resolution of each issue.”¿¿(Stewart v. Colonial Western Agency, Inc.¿(2001) 87 Cal.App.4th 1006, 1016.) Moving party has burden of initiation. (Volkswagenwerk Aktiengesellshaft v. Superior Court (1981), 122 Cal.App.3d 326 330.) Meet and confer is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order.”¿¿(McElhaney v. Cessna Aircraft Co.¿(1982) 134 Cal.App.3d 285, 289.) “This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.”¿(Townsend v. Superior Court¿(1998) 61 Cal.App.4th 1431, 1435.)¿ “A determination of whether an attempt at informal resolution is adequate . . . involves the exercise of discretion.”¿(Stewart (2001) 87 Cal.App.4th at 1016.)¿“The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.”¿(Id.)

"Meet and confer" or "confer" means to communicate directly and discuss in good faith the issue(s) required under the particular Rule or order… such communication may take place by telephone. The mere sending of a written, electronic, or voice-mail communication, however, does not satisfy a requirement to "meet and confer" or to "confer." Rather, this requirement can be satisfied only through direct dialogue and discussion — either in a face-to- face meeting or in a telephone conversation. (Phleger v. Countrywide Home Loans, Inc., No. C 07-1686 SBA, 5 (N.D. Cal. Dec. 24, 2007))

Defendant's meet and confer declaration indicates the meet and confer process consisted solely of a letter sent to Plaintiff without further detail on the meet and confer process. The letter requested Plaintiff to withdraw the notice or face a protective order. Defendant’s approach does not facilitate an interactive process for the parties to engage in meaningful dialogue about the scope of the deposition and it lacks the necessary collaborative effort envisioned by the good faith "meet and confer" requirement. A moving party must demonstrate a serious attempt to meet and confer in good faith, which requires either a phone call or a face-to -face meeting.

Accordingly, Defendant’s motion to compel is DENIED without prejudice and Parties are ORDERED to meet and confer on the scope of the PMK categories.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.