Judge: Malcolm Mackey, Case: 20STCV11249, Date: 2023-04-12 Tentative Ruling

Case Number: 20STCV11249    Hearing Date: April 12, 2023    Dept: 55

HENDRIX v. KTLA, LLC                                                  20STCV11249

Hearing Date:  4/12/23,  Dept. 55

#4:   MOTION FOR PROTECTIVE ORDER.

Notice:  Okay

Opposition

MP:  Plaintiff.

RP:  Defendants

Summary

On 3/20/20, Plaintiff BERNIE HENDRIX filed a Complaint.

On 7/6/21, Plaintiff filed a First Amended Complaint, alleging that the employer constructively terminated Plaintiff’s employment as camera operator, including by allowing ongoing sexual harassment by a coworker, and reducing hours, in retaliation for Plaintiff’s complaining about the harassment instead of putting up with it in order to get along with the other employee.

The causes of action are:

1) SEXUAL HARASSMENT, HOSTILE WORK ENVIRONMENT (CAL. GOV. CODE § 12940(J))

2) DISCRIMINATION (CAL. GOV. CODE § 12940(A))

3) RETALIATION FOR OPPOSING DISCRIMINATION AND HARASSMENT (CAL. GOV. CODE § 12940(H))

4) WRONGFUL CONSTRUCTIVE TERMINATION IN VIOLATION OF PUBLIC POLICY

5) FAILURE TO TAKE STEPS TO PREVENT HARASSMENT, DISCRIMINATION AND RETALIATION (CAL. GOV. CODE § 12940(K))

6) SEXUAL ASSAULT AND BATTERY

7) NEGLIGENT HIRING, SUPERVISION, AND RETENTION

8) NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

9) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

MP Positions

Moving party requests a protective order precluding defendants from continuing Plaintiff’s deposition for a third session, or specifying certain terms and conditions of which Plaintiff’s deposition can continue, on grounds including the following:

·         Plaintiff already attended two depositions totaling over 10 hours—an unjustified length.

·         Deposition questions were duplicative, harassing, and unnecessary. The questions were long, purposefully confusing, and Plaintiff had to have many of them repeated in order to understand.

·         Some deposition harassment was stark and oppressive, and Plaintiff’s counsel objected that the questions were asked and answered or that the question misstates deponents testimony.

·         The multiple days of deposition creates an undue burden on Plaintiff’s financial and mental health. Plaintiff was shaking, his blood pressure was elevated, and he could not continue. (Tourkow Decl., ¶3).

RP Positions

Opposing parties advocate denying, on bases including the following:

·         Plaintiff seeks to block the completion of his deposition, to the prejudice of Defendants needing to prepare to defend at trial, under the excuse that he already testified for ten hours.

·         Plaintiff’s claims of retaliation against his former employer, are not subject to the statutory limit of seven-hour depositions.  CCP § 2025.290(b)(4).

·         All examples of defense counsel’s deposition questions included with the motion are plainly relevant to Plaintiff’s claims of harassment and retaliation for his alleged complaints, as well as his special damages and general damages which include emotional distress. See Exhs. 7-14 to Tourkow Decl.; see also FAC.

·         Defendants questions were not oppressive or harassment.

Tentative Ruling

The motion is granted in part, as specified below.

Any further deposition of Plaintiff by defendants shall be no longer than 2 hours.

The deposition questions look all relevant.  However, the deposition transcripts filed with the motion show too much inefficient, harassing, duplicative and rephrased questions, basically overly focused, repetitive and aggressive, in accusing Plaintiff of (1) not recollecting well enough, (2) contradicting prior testimony and (3) not giving responsive answers.   Often, after Plaintiff answered about not remembering, deposing counsel nevertheless asked similar questions again.  It is unique. The Court has never seen such a great extent of that deposing style from any other attorneys.

Further, the motion’s declaration evidences Plaintiff’s health conditions exacerbated by a long deposition.

Under Code of Civil Procedure Sec. 2025.290, limiting deposition time, courts have discretion to allow some additional time, where needed to fairly examine a deponent, or where someone or something impeded or delayed the deposition.  Certainteed Corp. v. Sup. Ct.  (2014) 222 Cal.App.4th 1053, 1061-62.

Deponents are to answer deposition questions unless they pertain to privileged matters, or improper matters revealing a motive to harass or annoy, and “witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process.”  Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal. App. 4th 1006, 1015.

Analogously, serious illnesses of parties generally are good cause for granting extensions, and it is simply a case of human frailty.  Hernandez v. Sup. Ct. (2004) 115 Cal. App. 4th 1242, 1247-48;   Lerma v. County of Orange (2004) 120 Cal. App. 4th 709, 718.