Judge: Matthew C. Braner, Case: 37-2023-00002923-CU-CR-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Civil Rights Motion Hearing (Civil) 37-2023-00002923-CU-CR-CTL BOYD VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants County of San Diego and Sgt. William Munsch's motion for sanctions is GRANTED.

Defendants seek both monetary and nonmonetary sanctions against Plaintiff Marcus Boyd for violation of the protective order entered in this case. Defendants contend that Plaintiff not only violated the protective order when he included post a youtube video containing (and discussing) a document marked 'Confidential' produced in this case, but that the violation was willful. The court agrees.

When a party violates a protective order designed and intended to protect documents designated, in good faith, to be confidential, the court can employ both monetary and nonmonetary measures to sanction the conduct and prevent future misconduct. (See, e.g., Wallis v. PHL Associates, Inc. (2008) 168 Cal.App.4th 882, 897-900; Maggi v. Superior Court (2004) 119 Cal.App.4th 1218, 1226 [a trial court has discretion to issue discovery sanctions for violation of a protective order, which 'may include monetary sanctions,' or limiting depositions of third parties]; see also Code Civ. Proc., § 128.5, subd. (a) ['A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.']; Code Civ. Proc., § 2023.030 [court has discretion to impose monetary, issue, evidence, terminating, or contempt sanctions 'against anyone engaging in conduct that is a misuse of the discovery process'].) Having reviewed the evidence submitted by the parties, the court concludes Plaintiff violated the protective order. The document he superimposed approximately two minutes into his YouTube video on February 15, 2024, entitled 'Cherries, Berries & Scardies - Out with Deputy Eric Rader - IB's Most Scared Cop,' was marked 'Confidential' on both the bottom legend of the document and in the top right corner of the page, and included a Bates stamp. Inclusion of the document was not incidental; Plaintiff displayed the document across half the screen, then proceeded to discuss and comment on the document as evidence that his ongoing cop-watching efforts are warranted and necessary.

The court is not persuaded by Plaintiff's counsel's arguments in opposition. First, the document was clearly marked confidential, and was covered by the protective order either because Defendants substantially complied with the requirements for designating it as confidential, or because it is covered by third-party designations under section 12 of the protective order. (See Wallis v. PHL Associates, Inc., supra, 168 Cal.App.4th at p. 895 [applying the substantial compliance doctrine to issue of protective order violation].) Quite obviously, the primary objective of the protective order is to prevent disclosure of documents believed to be, and intended to remain, confidential; inclusion of the confidential designations on the document disclosed by Plaintiff, coupled with the content of that document, leaves little doubt it Calendar No.: Event ID:  TENTATIVE RULINGS

3094732  6 CASE NUMBER: CASE TITLE:  BOYD VS COUNTY OF SAN DIEGO [IMAGED]  37-2023-00002923-CU-CR-CTL was intended to be confidential within the meaning of the protective order. If Plaintiff or his counsel truly believed it was not confidential, the 'remedy was to bring the issue to the attention of the court and have the court make the determination,' as provided for in the protective order. (Id. at p. 896.) Second, Plaintiff did not act with substantial justification; his violation was willful. As stated above, the public disclosure of the document was not incidental; he intentionally included the document to support the purpose of a video unrelated to and outside of this case. Moreover, in deposition testimony on August 1, 2023, Plaintiff confirmed he had received a copy of the protective order entered on June 16, 2023 from his attorneys and had reviewed it, and understood it as a 'gag order,' whereby 'everything in the case is considered confidential unless otherwise released, and cannot be spoken about outside of the protected -- the parties involved.' Plaintiff also confirmed he had complied with the protective order, but characterized such compliance as 'unfortunate[].' In sum, Plaintiff willfully violated the protective order in this case, and will be sanctioned for this conduct.

Defendants request monetary sanctions of $5,444.56 based on 14 work hours expended to bring the motion at a rate of $247.48 for attorney Aceves, and an additional 8 hours of estimated work hours to review Plaintiff's opposition, prepare a reply, and to prepare for and attend the hearing. The court agrees monetary sanctions are appropriate, and that the rate for attorney Aceves is reasonable. The court also finds the hours expended to bring the motion to be reasonable. However, the estimated hours are not. A more reasonable estimate is 4.5 hours to review the opposition and prepare a reply, and 1.5 hours to prepare for and attend the hearing. Consequently, Plaintiff will be sanctioned in the amount of $4,949.60, for 20 hours of attorney time expended by attorney Aceves to bring the motion.

Defendants also request that Plaintiff be excluded from attending depositions during which confidential information may be discussed. Given the willfulness of Plaintiff's violation, and his stated intention to reveal confidential information however and as soon as he can, the court is inclined to agree this is an appropriate nonmonetary sanction. Nonetheless, the court will hear from the parties on this issue before making a final decision.

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