Judge: Lee W. Tsao, Case: 19STCV22923, Date: 2023-05-23 Tentative Ruling

Case Number: 19STCV22923    Hearing Date: May 23, 2023    Dept: C

JAMESON v. UNIVERSAL WASTE SYSTEMS, INC.

CASE NO.:  19STCV22923

HEARING:  5/23/23 @ 9:30 AM

#1

TENTATIVE RULING

I.             Plaintiff Jameson’s motion for a protective order and appointment of discovery referee to preside at depositions is GRANTED.  The request for sanctions is GRANTED.  Sanctions are imposed against Attorney Sonnet in the sum of $3,150.00, payable within 30 days.

II.            Plaintiff Jameson’s motion to compel deposition of Defendant Raymond Handling Solutions, Inc.’s employee, Carolyn Corbin, and for monetary sanctions is MOOT.  No sanctions.

Moving Party to give NOTICE.

Complaint

The Complaint alleges that “On or about August 17, 2017, Plaintiff, BRYON JAMESON, was operating a forklift…. As plaintiff was driving the forklift, which was poorly serviced and maintained, he lost control due to liquid on ground, which had spilled out from a trash bin… Plaintiff lost control of the forklift, due to the bald tires that were never replaced by Defendant, UNITED RENTALS, INC., after extensive complaints, and suffered severe physical injuries.”  Based thereon, the Complaint asserts a single cause of action for Negligence.

I.             Protective Order/Sanctions

Plaintiff Jameson moves for a protective order pursuant to CCP § 2025.420 and appointment of a discovery referee for depositions only pursuant to CCP § 639. 

“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(a).)

“When the court in any pending action determines that it is necessary for the court 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.”  (CCP § 639(a)(5).)

Here, Plaintiff alleges, and Defendant does not dispute, that Attorney Anthony Sonnett acted as follows:

·        During the deposition of William Messerschmidt on July 21, 2022, Mr. Sonnett terminated the deposition after Ms. Dordick requested a five-minute break. (Plaintiff’s Motion, Exhibit A, Transcript of Messerschmidt Deposition, p. 108:14-23.)  Mr. Sonnett directed the witness to leave (Id. at 109:8-15) and said, “I’ll take responsibility for that.”  (Id. at 110:1-3.)  Later, after Ms. Dordick asked for all documents that the witness reviewed and relied upon in preparing his report, Mr. Sonnett said, “You know, your ignorance of the law is astounding” and then he exited the Zoom meeting.  (Id. at 111:17-112:2.) 

·        During the deposition of Rosemary Glosser on March 21, 2023, Mr. Sonnett responded to an objection by Ms. Dordick by saying, “Really? You’re a real piece of work, Miss.”  (Plaintiff’s Motion, Exhibit B, Transcript of Rosemary Glosser Deposition, p. 18:18-24.)  After Mr. Sonnett asked the question again and Ms. Dordick objected on the same grounds, Mr. Sonnett said, “So I’ll permit you, ma’am, one more objection of that nature that’s unnecessary, then we’ll terminate the deposition, and I will request sanctions against you for interference with the deposition.  It’s a very simple process.”  (Id. at 19:16-20:18.) 

·        After this exchange, Mr. Sonnett referred to Ms. Dordick as “inexperienced and insecure” multiple times.  Ms. Dordick eventually said, “I’m not going to take it anymore.  This Deposition is not going forward.” (Id. at 23:3-5.)  Mr. Sonnett responded, “we’re going off the record for at least ten minutes …”  Instead of doing so, however, he continued questioning the witness in Ms. Dordick’s absence.  (Id. at 23:16-25:17.) 

In opposition, Defendant alleges various instances of misconduct by Plaintiff’s counsel, most of which involve making objections and requests without a legal basis.  According to Defendant, Plaintiff’s motion for a protective order is made without substantial justification and it is Plaintiff’s counsel who have misused the discovery process.  The court is unpersuaded.  None of the allegations against Plaintiff’s counsel are an excuse for Mr. Sonnett’s intemperate behavior.  The court finds that Plaintiff has demonstrated a need for a protective order to protect against unwarranted annoyance, embarrassment, and oppression by Mr. Sonnett during future depositions. 

Both parties agree that a discovery referee is necessary to aid in future depositions.  Both parties contend that the other should pay for the discovery referee.  Yet, they previously agreed to share the cost.  The court hereby appoints a discovery referee (to be selected jointly by the parties) and determines the cost of the discovery referee shall be shared equally between the parties.  The discovery referee shall only preside at depositions.  The court finds that no party has established an economic inability to pay a pro rata share of the referee’s fee. 

Sanctions:  CCP § 2025.420(d) states that the Court shall impose monetary sanctions against a party who unsuccessfully opposes a motion for protective
order.  CCP § 2023.020 permits a court to impose monetary sanctions against “one engaging in the misuse of the discovery process.” 

Plaintiff’s request for monetary sanctions is GRANTED.  All members of the bar should treat each other with respect and civility.  (California Attorney Guidelines of Civility and Professionalism Sec. 9(a)(3)-(5).)  Defendant asserts, “there is no factual basis to [Plaintiff’s claims of mistreatment].”  (Opposition, p. 16.)  The record demonstrates otherwise. 

The court finds that Plaintiff’s request of $3,150.00 is fair and reasonable.  Accordingly, sanctions are imposed against Attorney Sonnet in the sum of $3,150.00, payable within 30 days.

II.            Motion to Compel Deposition

Plaintiff Jameson moves to compel Carolyn Corbin’s deposition pursuant to CCP § 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... without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it...the party giving the notice may move for an order compelling the deponent’s attendance and testimony.”  (CCP § 2025.450(a).)

The motion filed on December 21, 2022, relates to a Notice of Deposition served on November 22, 2022, for a deposition to take place on December 8, 2022.  (Chang Decl., ¶ 3(d).)

Defendant agreed to produce Corbin on March 31, 2023, which was a date the parties had mutually agreed on.  (Id., ¶ 3.)  Thereafter, on March 22, 2023, Plaintiff noticed Corbin’s deposition, to take place on March 31, 2023.  (Dabrowski Decl., ¶ 4.) 

This motion is MOOT.  The deposition notice that is the subject of the motion is no longer at issue, and Defendant thereafter agreed to produce Corbin.

Plaintiff’s counsel contends that Defendant’s objection to the notice stated that “the witness will not be produced.”  (Reply, 6:27-28.)  However, this evidence is not before the court, and the deposition notice that concerns this motion is no longer at issue.