Judge Mark A. Young, Case 21SMCV00789 2023-02-23 Tentative Ruling

Judge: Mark A. Young, Case: 21SMCV00789, Date: 2023-02-23 Tentative Ruling

Case Number: 21SMCV00789 Hearing Date: February 23, 2023 Dept: M

CASE NAME: Militello, et al., v. VFARM 1509 Inc., et al.

CASE NO.: 21SMCV00789

MOTION: Motion to Compel Deposition/Motion for Protective Order

HEARING DATE: 2/23/2023

Legal Standard

Service of a proper deposition notice obligates a party or “party-affiliated” witness (officer, director, managing agent or employee of party) to attend and testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying. (CCP § 2025.280(a).) If, after service of a deposition notice, a party deponent fails to appear, testify, or produce documents or tangible things for inspection without having served a valid objection under Code of Civil Procedure § 2025.410, the deposing party may move for an order compelling attendance, testimony, and production. (CCP § 2025.450(a).) The motion must be accompanied by a meet and confer declaration, or, when a party deponent fails to attend the deposition, the motion must also be accompanied by a declaration stating that the moving party has contacted the party deponent to inquire about the nonappearance. (CCP § 2025.450(b)(2).)

A motion to compel production of documents described in a deposition notice must be accompanied by a showing of good cause. (CCP § 2025.450(b)(1).) In other words, the moving party must provide evidence (generally in the form of declarations) showing specific facts justifying inspection of the documents described in the notice. Courts liberally construe good cause in favor of discovery where facts show the documents are necessary for trial preparation.

The motion to compel must be “made no later than 60 days after the completion of the record of the deposition.” (CCP § 2025.480(b).) This time limit also applies to motions based on a deposition subpoena for production of documents or a business records subpoena. The 60-day time limit runs from the date objections are served because the deposition record is then complete. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192.)

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Admissibility is not the test, and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Ibid.) These rules are applied liberally in favor of discovery and, contrary to popular belief, fishing expeditions are permissible in some cases. (Ibid.)

Analysis

Plaintiff moves to compel defendant Joel Athey (“Athey”) to appear for his deposition within 10 days. Plaintiffs properly served an Amended Notice of Deposition on December 28, 2022. (Militello Decl. ¶ 8, Exh. H.) Athey objected to the Amended Notice, and thereafter failed to appear for deposition on January 12, 2023. However, Defendant failed to provide a “valid objection” under § 2025.410(a). Such objections are limited to errors and irregularities in the deposition notice, e.g., necessary contents of the deposition notice, how notice was served, where the deposition is to take place, etc. When the deposition of a party is properly noticed, the noticed party must appear. (CCP § 2025.280(a).) Serving objections based on convenience of counsel or the deponent does not prevent the deposition from going forward. Moreover, it appears that Plaintiffs did attempt to accommodate the deponent’s and counsel’s schedule, in line with their civility obligations. (See Millitello Decl., ¶¶ 4-11, Exs. C-K.) Athey did not file a motion to quash or request for a protective order until February 8, 2023, after the noticed deposition. Strictly speaking, Antey was obligated to appear at the noticed deposition. (CCP § 2025.280(a).)

For the sake of convenience, and despite its untimeliness to avoid the noticed deposition, the Court will also consider the merits of Athey’s motion for a protective order regarding this deposition. Athey claims the production of documents would necessarily include private and confidential information.

The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37.) When a person objects on the grounds of privacy, he or she must demonstrate disclosure of the requested information would invade a legally protected privacy interest. (See Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1423.) The party seeking information may raise in response whatever legitimate and important countervailing interest disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Hill, supra, at 37–40.)

Courts must carefully balance a right of privacy against the interest in having just litigation. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371.) If there is a serious invasion of a constitutional right to privacy, the party seeking the evidence must establish that the information sought is not only essential and directly relevant, but also that this information could not be discovered through less intrusive means. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552; Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.)

Athey’s concerns regard two categories of documents:

REQUEST FOR PRODUCTION NO. 2: DOCUMENTS sufficient to show (i) YOUR assets and liabilities as of the present date and (ii) YOUR income and expenses for calendar years 2019, 2020, and 2021. For purposes of this request, “assets” and “income” include, without limitation, any beneficial interests YOU hold as a beneficiary of any trust.

REQUEST FOR PRODUCTION NO. 5: All DOCUMENTS RELATING TO any complaint filed against YOU from 2015 to the present. For purposes of this request, “complaint” includes, without limitation, any State Bar complaint, internal HR complaint, and Arbitration.

(Samani Decl., ¶ 6; Exh. 5.)

The Court agrees that Request no. 2 poses a serious intrusion on Athey’s objectively reasonable expectation of privacy. Athey demonstrates that the request is overbroad, and impermissibly delves into important financial privacy rights. While some of Athey’s personal finances might lead to the discovery of admissible evidence relevant to this action, this does not mean that Plaintiffs may delve into all of his “assets and liabilities” and all his “income and expenses” from 2019-2021. This broad category of financial documents is not narrowly tailored. Given this broadness, the information sought is not essential to the resolution of this action, or directly relevant. Further, it facially violates Civil Code section 3295(c)’s prohibition on financial condition discovery. Thus, the Court will not require Athey to respond to Request no. 2.

As to Request no. 5, disciplinary proceedings initiated with the State Bar of California are presumptively confidential and privileged unless they are made public through the filing of formal charges. (Bus. & Prof. Code § 6094(a).) Accordingly, Athey has a reasonable expectation of privacy regarding the non-public State Bar complaints. Therefore, the Court will not require Athey to respond to this category insofar as it seeks non-public State Bar complaints. Athey does not provide for a privacy right to other responsive documents. Therefore, as to Category 5, it is granted in part.

Accordingly, Plaintiff’s motion to compel Athey’s deposition is GRANTED as modified. Athey is to be deposed within 10 days of this order at a mutually agreeable and reasonable time and location.

Sanctions are mandatory, unless the party subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2025.480(j).) Athey did not timely file his motion for a protective order. Therefore, Athey’s conduct necessitated this motion. On balance, the Court does not find that Athey was substantially justified in failing to appear at the deposition. As such, sanctions are justified against Athey and counsel of record.

That said, Plaintiff, in pro per, failed to notice any particular amount of sanctions in the notice. Instead, the request is buried in her declaration. Plaintiff declares that she spent 21.5 hours on preparing this motion and on related meet and confer efforts, at a rate of $300 per hour, and incurred filing and service costs of approximately $112.25, for a total of $6,562.25. However, “an attorney litigating in propria persona may not be awarded monetary discovery sanctions based on compensation for time and effort expended as a result of a misuse of the discovery process.” (Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1180.) Moreover, the Court would find the sanctions excessive, given the relative simplicity of the motion. Accordingly, the Court will grant costs in the amount of $112.25.