Judge: Mel Red Recana, Case: 21STCV27304, Date: 2024-07-10 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 21STCV27304    Hearing Date: July 10, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing Date:             July 10, 2024

Moving Party:             Defendant Regents of the University of California (erroneously sued as Regents of the University of California DBA UCLA Santa Monica Medical Center and UCLA Health)

Responding Party:       Plaintiff Blanca Calderon

Motion for Protective Order

The court has considered the moving, opposition, and reply papers.

The court DENIES Defendant’s motion for protective order.

The court DENIES Plaintiff’s request for monetary sanctions.

Background

On July 26, 2021, plaintiff Blanca Calderon (“Plaintiff”) initiated this action against defendant Regents of the University of California (erroneously sued as Regents of the University of California DBA UCLA Santa Monica Medical Center and UCLA Health) (“Defendant”), alleging causes of action for (1) Disability Discrimination in Violation of Government Code § 12940(a); (2) Failure to Reasonably Accommodate in Violation of Government Code § 12945.2; (3) Failure to Provide Medical Leave in Violation of Government Code § 12945.2; (4) Failure to Engage in the Interactive Process in Violation of Government Code § 12940(n); (5) Failure to Maintain a Workplace Free from Discrimination and Retaliation in Violation of Government Code § 12940(k); (6) Retaliation in Violation of FEHA; and (7) Wrongful Termination in Violation of FEHA.  The Complaint alleges Plaintiff worked as a housekeeper at Defendant’s ULCA Santa Monica Medical Center from 2007 to May 14, 2019. (Compl. ¶ 15.) Plaintiff sustained an initial workplace injury to her back on April 13, 2009, and she was referred to doctors under Defendant’s workers’ compensation insurance. (Id. at ¶¶ 16.) When Plaintiff attempted to return to work with restrictions, Defendant failed to provide reasonable accommodations and this behavior continued after Plaintiff returned from various durations of medical leave. (Id. at ¶¶ 17-20.) On May 15, 2010, Plaintiff sustained a second workplace injury to her right thumb and hand, and despite reporting the injury to her direct supervisor, she was instructed to keep working. (Id. at ¶ 21.) After four days, Plaintiff approached a different supervisor who referred her to a workers’ compensation doctor, and this injury was also categorized as a permanent injury. (Ibid.)

By December 18, 2015, Plaintiff   received a final orthopedic evaluation on both of her injuries, and it was determined that Plaintiff’s physical condition had stabilized and her medical conditions were permanent. (Id. at ¶ 23.) Thus, Plaintiff’s had several work restrictions needing to be accommodated. (Ibid.)

On December 13, 2019, defendant Michael E. Pfau (hereinafter, “Defendant”) filed this motion for protective order. Plaintiff filed an opposition on January 29, 2020. No reply was received. However, her supervisors did not make any good faith attempts to accommodate Plaintiff’s work restrictions, and as a result, Plaintiff was forced to perform her full duties. (Id. at ¶ 24.) Plaintiff repeatedly complained of the lack of accommodations from December 2015 through March 2017. By never being accommodated for her injuries, they worsened, and Plaintiff sought further treatment in March 2017 due to ongoing back and shoulder pain. (Id. at ¶ 26.) Because of her injuries, Plaintiff was placed on the most restrictive restrictions available, but Defendant ignored Plaintiff’s request for reasonable accommodations. (Id. at ¶ 27.) In January 2018, Plaintiff experienced pain in the same hand that had been injured in 2010, and when she informed her direct supervisor of this injury, no action was taken. (Id. at ¶ 28.)

By June 15, 2018, Plaintiff sustained another workplace injury to her knee because of Defendant’s refusal to provide reasonable accommodations. (Id. at ¶ 29-30.) It is alleged that Defendant continued to fail to accommodate Plaintiff for her work restrictions, and her knee and hand injuries worsened. (Id. at ¶¶ 31-37.) Because of the worsening condition in her hand, Plaintiff had to have surgery, and she was placed on medical leave from November 9, 2018 through December 3, 2018. (Id. at ¶ 37.) Upon returning to work, Plaintiff informed Defendant of her most recent work restrictions, but Defendant insisted that Plaintiff return to full duties without any accommodations. (Id. at ¶ 38.) Because Plaintiff’s injuries were worsening, she was placed on medical leave for three days in February 7, 2017 and released with work restrictions. (Id. ¶ 40.) Again, Defendants did not provide reasonable accommodations when Plaintiff returned to work on February 10, 2019. (Id. at ¶ 41.) By March 6, 2019, Plaintiff’s restrictions were reverted back to permanent restrictions for her knee injury. (Id. at ¶ 42.) On May 13, 2019, Defendant’s terminated Plaintiff on the ground that they could no longer accommodate Plaintiff’s restrictions as they were permanent, despite having been designated as permanent since December 2015. (Id. at ¶ 43.)  

On May 20, 2024, Defendant filed the instant motion for protective order in relation to Plaintiff’s attempt to take the deposition of sixteen third party lay witnesses.

On June 26, 2024, Plaintiff filed her opposition to the instant motion.

On July 2, 2024, Defendant filed its reply.

Legal Standard

            “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).) “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.” (CCP § 2025.420(b).) This protective order may include, but is not limited to, one or more of the following directions set forth in CCP §§ 2025.420(b)(1)-(16). “Code of Civil Procedure section 2025.420, subdivision (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.)

            “If the motion for a protective order is denied in whole or in part, the court may order that the deponent provide or permit the discovery against which protection was sought on those terms and conditions that are just.” (CCP § 2025.420(g).) “ ‘[T]he issuance and formulation of protective orders are to a large extent discretionary. [Citation.]’ ” (Nativi, supra, 223 Cal.App.4th at 316.)

            “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).)

Furthermore, CCP §2017.020(a) provides, as follows:  “The court shall limit the scope of discovery if it 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. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” Also, under CCP § 2019.030(a)(1), the court may restrict the frequency or extent of use of a discovery method if “[t]he discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.”

Evidentiary Objections

            Defendant objects to various portions of the Declaration of Brennan S. Kahn, which was submitted in support of Plaintiff’s opposition. These objections are overruled in their entirety.

Discussion

            As a preliminary matter, the court finds that Defendant has sufficiently met and conferred on the issue of the protective order. (See Afshar Decl. ¶¶ 11-13, Exhs. G-I.)

Merits of the Motion

            Defendant moves for a protective order pursuant to CCP §§ 2025.420, 2017.010, and 2019.030 to bar and limit Plaintiff from taking the depositions of additional third-party lay witnesses. Defendant first contends that there is good cause to issue the requested protective orders because, in past depositions of other lay witnesses, Plaintiff’s counsel has improperly asked questions relating to legal conclusions and that require the lay witnesses to interpret medical records and opine on the performance of work duties under medical conditions. (Motion at pp. 8-9.) Effectively, Defendant argues that Plaintiff is seeking the lay witnesses to speculate based on various hypotheticals. (Id. at pp. 9-10.)

Second, Defendant contends that Plaintiff seeks duplicative testimony because, in the previous eight depositions of lay witnesses, Plaintiff has nearly identical questions that concerned her specific work restrictions, the accommodations offered and provided, modified work duties, the work actual performed, and hypotheticals relating to work restrictions. (Id. at pg. 11; Afshar Decl. ¶¶ 4-5, Exh. C.)

Defendant also argues that it would suffer irreparable harm if the court declines to intervene in this instance because the third-party witnesses will continue to be harassed to answer questions that they lack personal knowledge about. (Id. at pg. 12.)

            In opposition, Plaintiff argues that the instant motion is deficient because Defendant fails to argue why any specific witness should not be deposed or why any specific question should not be asked. (Opposition at pg. 9.) Thus, Plaintiff reasons that Defendant is improperly requesting the court to issue an blanket prohibition without a specific factual basis. (Id., relying on Meritplan Insurance Co. v. Superior Court (1981) 124 Cal. App. 3d 237, 241-242.) Plaintiff contends that Defendant should not be allowed to arbitrarily limit her ability to conduct necessary depositions or even to curtail certain line of questionings without further information. (Id. at pg. 10.) Moreover, Plaintiff argues that the witnesses that she intends to depose are relevant to her claims because they were Plaintiff’s direct supervisors, direct co-workers, executives over Plaintiff’s department, or personnel associated with accommodation requests. (Id. at pp. 13-14.)

            Plaintiff further contends that she should be permitted to question the deponents without restrictions because Defendant’s objections are premised on the lack of relevance of the testimony elicited, but they can be later contested on admissibility grounds. (Id. at pp. 14-15.)    

            In reply, Defendant argues that Plaintiff’s reliance on Mertiplan Insurance Co. is misplaced because the protective order issued there did not establish whether the depositions were harassing, duplicative or burdensome, and it did not address any potentially proper questioning. (Mertiplan Insurance Co., supra, 124 Cal.App.3d at 241-242.) Defendant maintains that there is good cause for the protective order on the ground that the line of improper questioning amounts to harassment and annoyance and that the testimony that Plaintiff seeks to elicit is duplicative of prior deposition testimony. (Reply at pp. 6-8.)

             As an initial matter, the court is not inclined to issue a broad sweeping order that bars the taking of further third-party witness depositions.  After all, the scope of discovery is broad. (Children’s Hosp. of Central CA v. Blue Cross of CA (2014) 226 Cal.App.4th 1260, 1276.) While the court is concerned that Plaintiff is repeatedly seeking to elicit testimony of legal conclusions from third-party lay witnesses, the court does not find the questioning generally complained of warrants the prohibition of those questions from being asked when they could be within the proposed third-party witnesses’ personal knowledge.

Primarily, the court finds that Defendant has failed to show how allowing Plaintiff to proceed with additional proposed third-party lay witness depositions would result in “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP § 2025.420(b).) The only irreparable harm that Defendant identifies is that the third-party witnesses will be harassed and “made to feel uncomfortable.” However, this is not persuasive because, if these third-party lay witnesses lack personal knowledge to answer the questions that Plaintiff seeks to ask, then they may merely testify in the negative. Additionally, considering that Plaintiff has already deposed eight third-party lay witnesses, there is no declaration from them to suggest that any of them felt harassed during their depositions.

Moreover, to the extent that Defendant seeks to restrict the use of deposition because Plaintiff is seeking duplicative information, the Court is not persuaded by this information because Defendant has failed to show that the proposed third-party lay witnesses lack the personal knowledge needed to answer Plaintiff’s questions.

The court therefore DENIES Defendant’s motion for protective order.

Requests for Monetary Sanctions

            Plaintiff seeks monetary sanctions against Defendant in the total amount of $7,000 pursuant to Code of Civil Procedure § 2025.420(h) for unsuccessfully making the instant motion. However, the Court does not find that Defendant acted without substantial justification in moving for the requested protective order. As stated above, one concern was Plaintiff’s repeated questions to lay witnesses about legal conclusions, and another was that Plaintiff had already deposed eight witnesses asking similar questions. Thus, it appeared to Defendant that further depositions without court intervention would prove duplicative and unnecessarily protracted. On this ground, Defendant acted with substantial justification in moving for the requested protective order.

            The court therefore DENIES Plaintiff’s request for monetary sanctions.

It is so ordered.

Dated: July 10, 2024

_______________________

MEL RED RECANA