Judge Lynne M. Hobbs, Case Number: 19STCV21811, Date: 2023-10-30 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 19STCV21811, Date: 2023-10-30 Tentative Ruling

PLEASE NOTE:

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Case Number: 19STCV21811 Hearing Date: March 12, 2024 Dept: 30

EARL HACKETT, JR. vs ISB TRANSPORT LTD., et al.

TENTATIVE

Defendants’ motion for a protective order is DENIED without prejudice. Both parties’ request for sanctions is DENIED. Moving party to give notice.

Plaintiff’s motion to compel the deposition of a non-party witness is DENIED without prejudice. Plaintiff’s request for sanctions is DENIED. Moving party to give notice.

Legal Standard

Protective Order

“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).) This motion must be accompanied by a meet and confer declaration under CCP section 2016.040. (Ibid.) “The court, for good cause shown, may make an order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP § 2025.420(b).)

CCP section 2025.420(b) provides a nonexclusive list of permissible directions that may be included in a protective order. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316.) These directions include, inter alia, that the deposition be taken only on specified terms and conditions. (CCP § 2025.420(b)(5).) Ultimately, “the burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Nativi, supra, 223 Cal.App.4th at 318.)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, 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. (CCP § 2025.420(h).)

Motion to Compel Deposition

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”¿ (CCP § 2025.010.)

“Personal service of a deposition subpoena obligates any resident of California to appear, testify and produce whatever documents or things are specified in the subpoena; and to appear in any proceedings to enforce discovery.” (CCP § 2020.220(c).)

Where a deponent fails to appear or produce documents at a deposition, Code of Civil Procedure § 2025.450 permits a party to seek a motion to compel a deposition. The motion

is permissible after a party fails to appear without having served a valid objection pursuant to Code of Civil Procedure § 2025.410. (Code of Civil Procedure § 2025.450(a).)

CCP section¿2025.450(g)(1) provides, “(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id., § 2025.450(g)(1).)

Discussion

Protective Order

Defendants move for a protective order to prevent Plaintiff Hackett’s counsel, Bita Azimi, from attempting a second session of the deposition of third-party, independent witness, Fawn Bishop. Bishop was a percipient witness in the Traffic Collision Report related to the subject accident. (McIntyre Decl., ¶ 2.) The statement attributed to her in the Traffic Collision Report is as follows:

“Witness (Fawn Bishop) was contacted on scene and related in essence that she did not observe the traffic collision, but she did observe V-2 [Plaintiff’s vehicle] in the #3 lane, impeding the flow of traffic, and she had to slam on her brakes and drive around V-2. Witness Bishop stated that V-2’s trailer appeared to be oversized and the trailer lights were not flashing and only had solid red illuminated lights.”

Defendants argue that defense counsel had to unilaterally suspend the first deposition session due to the harassing nature of the questioning by Azimi. Defendants argue that Azimi engaged in no less than 1 hour and 47 minutes of berating and harassing Bishop, who is physically infirm, until Bishop was physically exhausted and out of breath from trying to explain and re-explain testimony she had been forced to repeat multiple times by Azimi. Azimi simply refused to accept the testimony of Bishop, and eventually resorted to directly berating the witness.

During the planning for the deposition, Bishop disclosed to defense counsel that she had contracted Covid a year prior and had been in a coma for 49 days. (McIntyre Decl., ¶ 3.) She now has a tracheostomy hole in the front of her neck, and requires a breathing tube connected to an oxygen machine at all times. (Id.) She is on total disability and has attendant care multiple times per week. It is very difficult for Bishop to speak, and she does so only with great effort.

Further, Bishop recently related that she had contracted pneumonia and was receiving in-home hospice care. (Id.) She said she would not be able to participate in any further session of her deposition, even if it were ordered by the Court. (Id.)

In opposition, Plaintiff argues that during the questioning, the deponent gave multiple confusing and contrasting answers to simple questions and then became combative and argumentative with Plaintiff’s counsel Azimi. (Khachoyan Decl., ¶ 6; Exh. A: Bishop’s deposition transcript.) Plaintiff contends that as Azimi was attempting to continue her questioning and gather clear answers for the record, defense counsel called a break and upon returning, unilaterally suspended the deposition without meeting and conferring.

The Court has reviewed the full video of the deposition. The Court finds that while Plaintiff’s counsel did keep interjecting, her tone was not harassing. In fact, she was polite in the beginning of the deposition. Rather, it appears that the witness became defensive by the time Co-Plaintiff’s counsel began deposing her. Then, when it became time for Azimi to depose her, she appeared to be exhausted, and combative at times. For example, she said: “I just don't understand. I already talked to the officer. I already told you everything that I saw, and I don't really think that it needs to go into this full-fledged thing for no reason. I already gave my answer. So leave me alone.” (Bishop Depo., 46:18-25, 47:1-7.) Nevertheless, Azimi should have practiced more patience with the witness due to the circumstances presented. Azimi is reminded that counsel should at all times be civil and courteous with witnesses. “Counsel should at all times be civil and courteous in communicating with adversaries, whether in writing or orally.” (LASCR App. 3.A(d)(1).) “Counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.” (LASCR App. 3A(e)(11).) “An attorney should treat other counsel and participants with courtesy and civility, and should not engage in conduct that would be inappropriate in the presence of a judicial officer.” (State Bar Attorney Guidelines of Civility and Professionalism, § 9(a)(3).) Azimi appeared to berate the witness multiple times.

The Court does not find, however, that Azimi’s conduct rose to harassment such that a second session of Bishop’s deposition should be precluded. As stated before, by the time it was Azimi’s turn to depose the witness, Bishop was already exhausted, uncooperative, and did not want to answer the questions. But Bishop has testified that the lights on Plaintiff’s car were either blocked or not working, and that she almost hit Plaintiff too. As a result, Plaintiff has every right to fully depose Bishop. The Court reminds the parties of the broad and liberal nature of discovery. (Code Civ. Proc., § 2017.010; Williams v. Superior Court (2017) 3 Cal.5th 531, 540-541.) Under Code of Civil Procedure section 2017.020 courts “shall limit the scope of discovery if” the court “determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” A “court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Id.)

While Defendants argue that Bishop has contracted pneumonia and would not be able to participate in any further session of her deposition, this is hearsay, and inadmissible. There is no admissible evidence to show that Bishop cannot participate in a second session of deposition, such as a note from her doctor.

Based on the foregoing, the motion for a protective order is DENIED. However, counsel for Plaintiff Hackett is reminded to be civil and respectful towards the witness in the event of a second deposition session.

As the motion is denied Defendants’ request for sanctions against Plaintiff’s counsel Azimi is denied.

Plaintiff’s request for sanctions against Defendants is also denied. Although the motion for a protective order was unsuccessful, the deposition clearly had become heated, and it was reasonable for defense counsel to unilaterally suspend the deposition and move for a protective order. The Court also finds that the parties also made good faith attempts at meeting and conferring.

Motion to Compel Bishop’s Deposition

Plaintiff moves to compel the second session of deposition of non-party witness Fawn Bishops and request sanctions against defense counsel.

There is no proof of personal service of the subpoena on Bishop, nor is there any deposition subpoena submitted to the Court. Plaintiff has filed a declaration from a paralegal at the law firm that represents Plaintiff, which states that the paralegal caused a deposition subpoena to be served on Bishop. (Zeoli Decl., ¶ 2.) “Personal service of a deposition subpoena obligates any resident of California to appear, testify and produce whatever documents or things are specified in the subpoena; and to appear in any proceedings to enforce discovery.” (CCP § 2020.220(c).) Zeoli does not state the deposition subpoena was personally served on Bishop. Moreover, even if he did, the deposition subpoena should at the very least be submitted to the Court in order for the Court to review it and make a determination as to whether the non-party has been property served. Yet, no deposition subpoena has been submitted to this Court. Therefore, the Court cannot compel the deposition of a non-party witness without evidence of the deposition subpoena, and proof of service showing the deposition subpoena was personally served on the non-party.

Further, the proof of service of the motion that is signed by Zeoli does not have a check mark to indicate it was personally served on Bishop. The next page, which is not signed, says Bishop was personally served.

Therefore, the motion to compel is denied without prejudice.

Plaintiff’s request for sanctions pursuant to Code of Civil Procedure section 2023.030(a) is denied as Code of Civil Procedure sections 2023.010 and 2023.030 do not independently authorize the trial court to impose monetary sanctions for misuse of discovery.” (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504.) As no other statute or law is cited for sanctions, the request is denied. In any event, the Court has already found that defense counsel’s unilaterally suspension of the deposition was reasonable in light of the circumstances.

Conclusion

Based on the foregoing, Defendants’ motion for a protective order is DENIED without prejudice. Both parties’ request for sanctions is DENIED.

Plaintiff’s motion to compel the deposition of a non-party witness is DENIED without prejudice. Plaintiff’s request for sanctions is DENIED.