Judge Linda S. Marks, Case 01149847 2022-07-25 Tentative Ruling

Judge: Linda S. Marks, Case: 01149847, Date: 2022-07-25 Tentative Ruling

1. Motion to Compel Deposition 2/17/22

2. Motion to Compel Deposition 2/22/22

Motion 1:

CCP § 2025.480(b) provides: “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Emphasis added.) The 60-day deadline is mandatory. (Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 321, 322, fn. 3.) The deadline is jurisdictional insofar as it renders the court without authority to rule on motions to compel other than to deny them. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Here, Plaintiffs assert that the motion is timely because “Defendant’s counsel granted Plaintiffs a four (4) week extension to file the present motion in exchange for a reciprocal extension to allow the parties to continue their meet and confer efforts. [Citation.]” (Motion, 5:12-14; (Declaration of Assal Assassi (“Assassi Decl.”), ¶¶ 12, 13, 15, 16, 19.) Plaintiffs do not cite to any authority allowing for an extension of the 60-day deadline to file the instant motion.

Nevertheless, CCP § 2016.030 states, “[u]nless the court orders otherwise, the parties may by written stipulation modify the procedures provided by this title for any method of discovery permitted under Section 2019.010.” In addition, CCP § 2024.060 states:

Parties to an action may, with the consent of any party affected by it, enter into an agreement to extend the time for the completion of discovery proceedings or for the hearing of motions concerning discovery, or to reopen discovery after a new date for trial of the action has been set. This agreement may be informal, but it shall be confirmed in a writing that specifies the extended date. In no event shall this agreement require a court to grant a continuance or postponement of the trial of the action. (CCP § 2024.060)

Here, Plaintiff fails to show that any agreement to extend the deadline for the instant motion was confirmed in writing and specified the extended date as required by CCP § 2024.060. Consequently, any agreement to extend the deadline to file the motion was not properly made such that the instant motion to compel was untimely filed on February 17, 2022. As the deadline is mandatory and discovery deadlines have been treated as jurisdictional, the Court is without authority to rule on the motion to compel other than to deny it.

Tentative Ruling: Motion to Compel filed on 2/17/22 is DENIED.

Defendant to give notice.

Motion 2:

A. Category 1 – Questions Regarding Securities and Exchange Commission Matter

In a line of questioning regarding a Securities and Exchange Commission matter related to Defendant, Plaintiffs’ counsel asked Deponent whether she knew how the matter resolved and whether Defendant was charged with anything in connection with that matter. Deponent was instructed not to answer based on the marital privilege. (Declaration of Assal Assassi (“Assassi Decl.”), Ex. E at 35:22-36:2, 36:13-23.)

Deponent’s counsel admits that these questions relate to matters that are public record and states Deponent will be made available for deposition regarding these two questions. The Court agrees that these questions seek matters that are public record.

Tentative Ruling: The Motion is GRANTED as to these two questions.

B. Category 2 – Questions Regarding Written Discovery Served on Deponent

Plaintiffs next move to compel Deponent to answer a question that relates to written discovery Plaintiffs served on her before she was dismissed from this action as a defendant. Plaintiffs’ counsel asked whether anyone had reached out to her to try and get responses to written discovery. Deponent was instructed not to answer based on the attorney-client privilege. (Assassi Decl., Ex. E at 55:5-56:20.)

Plaintiffs contend the attorney-client privilege does not apply because Deponent testified that she was not represented by counsel until a few weeks before the deposition.

Deponent has submitted a declaration stating she mistakenly believed she retained counsel only a few weeks before the deposition because she is not an attorney and does not understand the intricacies of litigation. Her attorney was retained by Defendant and her insurance carrier to defend her before the lawsuit was filed. (Declaration of Teri Eichenauer, ¶ 2.) The Court notes that Mr. Gonter’s firm filed an Answer on behalf of Defendant and Deponent on 10/9/20. Plaintiffs served written discovery on Deponent on 2/23/21. (Assassi Decl., ¶ 10.)

The pending question seeks information that would violate the attorney-client privilege, as anyone who would have reached out to deponent to prepare responses to the written discovery would have been her counsel, and such communication would have been made in the course of an attorney-client relationship.

Tentative Ruling: The Motion is DENIED as to the second category.

C. Category 3 – Questions Regarding the Deponent’s Phone Call with Defendant

The third and final category of deposition questions relate to a phone call between Deponent and Defendant while Defendant was at the scene of the vehicle collision. Deponent was instructed not to answer questions regarding what Defendant told her or the substance of their conversation based on the marital privilege. (Assassi Decl., Ex. E at 79:5-17, 82:13-19.)

Plaintiffs argue that because there were multiple law enforcement personnel, first responders, and bystanders at the scene, Defendant’s communications with Deponent at the scene were not made in confidence and are not covered by the marital privilege. Plaintiffs argue video taken at the scene depicts Defendant talking on his cell phone and, when Defendant is asked to hang up, he states he is going to leave his wife “on speaker.” (Assassi Decl., ¶ 42.) Deponent also testified that she could hear a lot of people at the scene in close proximity to Defendant. (Assassi Decl., Ex. E at 82:8-12.)

Defendant states by declaration that he spoke with Deponent, who was his wife at the time, for about two minutes. (Declaration of Marshall Eichenauer, ¶ 2.) There were law enforcement and first responders in the vicinity but not close enough to hear their conversation. (Ibid.) The background noise was loud enough so that anyone could not overhear their conversation, even if they were standing nearby. (Ibid.)

Evidence Code section 917(a) states, in relevant part: “If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the . . . marital . . . relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential. (Evid. Code § 917(a).) Evidence Code section 970 provides that “[e]xcept as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.” In addition, Evidence Code section 980 provides, “[s]ubject to Section 912 and except as otherwise provided in this article, a spouse . . ., whether or not a party, has a privilege during the martial or domestic partnership relationship and afterwards 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.”

The opponent of the privilege claim has the burden to prove that the communication was not made in confidence during the course of a marital relationship pursuant to Evidence Code section 917(a).

Here, the stills from the video attached as Plaintiffs’ Exhibit F do not overcome the presumption that Defendant and Deponent’s phone call was made in confidence. None of the stills show that Defendant was in such proximity to any other person while on the cell phone that that other person must have been able to hear his conversation with Deponent. Notably, though the video has not been provided to the Court, it seems that the video has audio recording during which Defendant can sometimes be heard speaking, such as when he says he is going to place Deponent on speaker, but also times when he cannot be heard. If Defendant cannot be heard on the video at certain times when he is speaking with Deponent on the phone, such a fact would support the presumption that Defendant and Deponent’s call was made in confidence. Regardless, Plaintiffs have not met their burden to prove that the communication at issue was not made in confidence between Defendant and Deponent.

Tentative Ruling: The Motion is DENIED as to the third category.

Because the Motion is granted, in part, and denied, in part, the Court will decline to award monetary sanctions, as both parties raised meritorious arguments and acted with substantial justification here.

Plaintiffs to give notice.