Judge Lynne M. Hobbs, Case Number: 23STCV13104, Date: 2024-07-09 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV13104, Date: 2024-07-09 Tentative Ruling

Case Number: 23STCV13104 Hearing Date: July 9, 2024 Dept: 61

RAYMOND GHERMEZIAN, et al. vs ALMA NUNEZ, et al.

TENTATIVE

Plaintiffs Raymond Ghermezian and Raymond Ghermezian, APC’s Motion for Protective Order is DENIED. No sanctions are awarded.

Plaintiffs Raymond Ghermezian and Raymond Ghermezian, APC’s Motion to Compel Deposition of Defendant Joseph H. Low IV is GRANTED. No sanctions are awarded.

Defendant Joseph H. Low IV’s Motion to Compel Deposition of Plaintiff Raymond Ghermezian is GRANTED. No sanctions are awarded.

Plaintiffs to give notice.

DISCUSSION

MOTION FOR 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. 2025.420, subd. (a).) “The court, for good cause shown, may make any 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.” (Code Civ. Proc., § 2025.420, subd. (b).)

Plaintiff Raymond Ghermezian (Plaintiff) moves for an order preventing Defendants Alma Nunez and Joseph H. Low, IV (Defendants) from using an audio recording — made by Nunez in the presence of Plaintiff without his consent — in “discovery, hearings, mediation, or any other purpose in this matter.” (Motion at p. 2.)

Plaintiff states that Nunez made an audio recording of him speaking to her regarding the underlying case, a fact revealed to him on May 28, 2024, during mediation in this matter.. (Ghermezian Decl. ¶ 3.) Plaintiff states the recording was played for the mediator and partially for himself. (Ibid.) Plaintiff contends that he did not consent to be recorded. (Ghermezian Decl. ¶ 4.) He argues that Defendants likely intend to present the recording at his deposition, in order to elicit testimony that may contradict its contents. (Ghermezian Decl. ¶ 5.) Defendants have no produced the recording in discovery. (Ghermezian Decl. ¶ 5.)

Plaintiff relies on Penal Code § 632, which makes guilty of a misdemeanor any “person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.” (Penal Code § 632, subd. (a).) This same statute states: “Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding.” (Penal Code § 632, subd. (d).)

Defendants argue that Penal Code § 632’s prohibition does not apply here, because the presence of a third person during the recorded conversation — evidenced by a third voice on the recording — renders the conversation not “confidential.” (Opposition at pp. 8–9.) But Defendants cite no authority for this argument, and it is contradicted by the statutory text. The statute prohibits a person’s recording of a confidential communication “without the consent of all parties,” and does not indicate a limitation to bilateral communications between two persons. (Penal Code § 632, subd. (a), italics added.) The statute defines “confidential communication” to mean “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto,” once more indicating no limitation of confidentiality to two persons. (Penal Code § 632, subd. (c).)

Defendants further argue that Penal Code § 632 is not applicable to civil proceedings(Opposition at p. 8), but this argument is contradicted by the statutory language itself, which prescribes inadmissibility “in any judicial . . . proceedings,” naturally including civil cases. (Penal Code § 632, subd. (d).) It is also contradicted by case authority, which has gone on to apply the provision to civil proceedings. (See Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1492 [“Neither the tainted recordings nor the notes derived from them can be read in evidence.”].) Defendants’ arguments for the inapplicability of Penal Code § 632 is therefore unpersuasive.

But regardless of whether or not Penal Code § 632 is applicable, Plaintiff has not shown good cause for the protective order he seeks here. Plaintiff seeks a total prohibition on the use of the recording, a sweeping order finding no basis in the operative statute. The legislature has defined the remedy appropriate for illicit recordings, which include criminal penalties and direction that such evidence be “not admissible” in judicial proceedings. (Penal Code § 632, subd. (d).) Plaintiff in fact misquotes the statute in his motion, stating that it “prohibits the use of any illegal recording in any judicial, administrative, legislative, or other proceeding.” (Motion at p. 5, italics added.) But the statute does not prohibit the recording’s use; it renders the recording “not admissible.” (Penal Code § 632, subd. (d).) Such a recording therefore may not be admitted into evidence — but it may be used for other purposes, such as, refreshing the recollection of the parties to the conversation. (See Frio, supra, 203 Cal.app.3d at p. 1494 [“[W]e are unaware of any decision holding that a witness may not testify after simply refreshing recollection with tainted evidence.”].) Plaintiff is therefore not entitled to a protective order.

The motion for protective order is therefore DENIED.

II. MOTION TO COMPEL DEPOSITION

A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).)

In competing motions, Plaintiff seeks to compel the deposition of Defendant Joseph R. Low, IV (Low), and Defendants seek to compel the deposition of Plaintiff.

Defendants served Plaintiff with a deposition notice on April 30, 2024, with the deposition set for May 17, 2024, for which Plaintiff failed to appear after serving objections based on his lack of availability. (Lewis Decl. ¶¶ 3–4, Exhs. A, B.) Plaintiff stated in informal correspondence that he “has priority” for his deposition because he had noticed Low’s deposition to take place first. (Lewis Decl. Exh. E.)

Plaintiff, meanwhile, served Low with a deposition notice on February 1, 2024, with the deposition noticed for February 16, 2024. (Ghermezian Decl. ¶ 3, Exh. A.) Low objected to the date and to the requests for production on February 8, 2024. (Ghermezian Decl. ¶ 4, Exh. B.) Plaintiff sent an email on February 8, 2024, seeking alternative dates “to depose Mr. Low in my office in February.” (Ghermezian Decl. Exh. C.) Defendants evidently provided no dates. In a March 7, 2024 email, Defendants’ counsel told Plaintiff that Low’s trial calendar — one lasting six to eight weeks, another expected to last ten days — would prevent his attendance at a mediation any earlier than “the May 28 date offered by the mediator,” (Ghermezian Decl. Exh. E.) But Defendants declined to offer dates for Low’s deposition, even after noticing Plaintiff’s deposition for May 17. (Ghermezian Decl. Exh. D.)

Both parties’ motions shall be granted, and both Ghermezian and Low compelled to attend deposition. Both parties object on the basis of availability, yet neither have provided any dates of availability for the depositions to proceed. Plaintiff argues that he is entitled to take the deposition of Low first because he noticed the deposition first. (Opposition at pp. 2–3.) Plaintiff was not so entitled, because “the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” (Code Civ. Proc., § 2019.020, subd. (a).) Plaintiff relies on State Bar civility guidelines stating, “When another party notices a deposition for the near future, absent unusual circumstances, an attorney should not schedule another deposition in the same case for an earlier date without opposing counsel’s agreement.” (Cal. Attorney Guidelines of Civility and Professionalism, § 9, subd. (a)(1).) But the taking of Low’s deposition during the time allotted by Plaintiff was prevented by Low’s trial schedule. And in any event, these guidelines do not excuse either party’s refusal to offer dates, in light of an express statutory directive against Plaintiff’s argument limiting discovery based on “priority.”

In addition to compelling Low’s attendance at deposition, Plaintiff also seeks an order directing him to produce documents responsive to three requests for production contained in the deposition notice, which seek documents related to the settlement and Nunez’s client file. (Motion at p. 5; Ghermezian Decl. Exh. A.) Although Defendants argue that they have already responded to similar requests offered as inspection demands (Opposition at pp. 3–4), Plaintiff may seek the same discovery by deposition notice that they earlier sought by written discovery, if they are dissatisfied with the earlier responses. (See Carter v. Superior Court (1990) 218 Cal.App.3d 994, 997 [“[T]he inspection of documents procedure is quite different from a deposition at which a party is required to bring documents. Nothing in either section 2025 or section 2031 suggests that seeking documents under one statutory procedure bars a litigant from seeking the same documents under the other.”].) The documents sought here relate to the subject matter of the action, and good cause for the production has been shown, subject to a privilege log under Code of Civil Procedure § 2031.240.

The motions to compel deposition are therefore GRANTED.

III. SANCTIONS

If a motion to compel deposition 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.” (Code Civ. Proc. § 2025.450, subd. (g)(1).)

Plaintiff seeks $2,400.00 in sanctions against Defendants and their counsel, representing six hours of attorney work at $400 per hour. (Ghermezian Decl. ¶ 11.) Defendant Low seeks $3,660.00 in sanctions against Plaintiff, representing six hours of attorney work at $600 per hour plus a $60 filing fee. (Lewis Decl. ¶¶ 13–15.) No sanctions are awarded on either motion, as the parties have obtained relief against each other.

Sanctions are also mandatory against the party who unsuccessfully makes or opposes a motion for a protective order, absent substantial justification or “other circumstances that make the award of the sanctions unjust.” (Code Civ. Proc. § 2025.420, subd. (h). Plaintiff seeks $2,100.00 in sanctions, representing a miscalculation of seven hours of attorney work at $400, which should yield a total of $2,800.00. (Ghermezian Decl. ¶ 7.) Defendants in turn seek $2,880.00 in sanctions on the same motion, representing a miscalculation of 4.5 hours of attorney work at $600 per hour, which should yield a sanctions request of $2,700.00. (Lewis Decl. ¶ 13.) No sanctions under the protective order motion are appropriate, as Plaintiff sought the order based on a misinterpretation of the reach of Penal Code § 632, subd. (d), and Defendants opposed it based on a misinterpretation of Penal Code § 632, subd. (c). It would therefore be unjust to award sanctions to either party