Judge: Michael E. Whitaker, Case: 19STCV38470, Date: 2022-08-17 Tentative Ruling

Case Number: 19STCV38470    Hearing Date: August 17, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

 

TENTATIVE RULING

 

DEPARTMENT

32

HEARING DATE

August 17, 2022

CASE NUMBER

19STCV38470

MOTIONS

Motions for Protective Orders

MOVING PARTIES

Defendants PV Holding Corporation and Siwei Huang

OPPOSING PARTY

Plaintiff Thabo N. Mzilikazi

 

MOTIONS

 

Plaintiff Thabo N. Mzilikazi sued defendants PV Holding Corporation (“PV”) and Siwei Huang (“Huang”) based on a motor vehicle collision.  At the time of the incident, Huang, a foreign national visiting from the People’s Republic of China, was driving a vehicle leased to him by PV.

 

Defendants move for protective orders (1) providing that Huang not be required to provide verified responses to Plaintiff’s written discovery; and (2) precluding Plaintiff from deposing both Huang and the person most knowledgeable for PV (“Deponent”).  Plaintiff opposes the motions.

 

The Court notes that Defendants filed a single motion for protective order precluding the depositions of both Huang and Deponent.  Instead, Defendants should have filed separate motions as to each individual to be deposed for a total of two motions. The Court will therefore order Defendants to pay an additional $60 in filing fees. (Gov. Code, § 70617, subd. (a).)

 

ANALYSIS

 

  1. WRITTEN DISCOVERY RESPONSES

     

    “The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  (Code Civ. Proc., §§ 2030.090, subd. (b); 2033.080, subd. (b).)   The protective order may include direction that the subject discovery request need not be answered.  (Code Civ. Proc., §§ 2030.090, subd. (b)(1); 2033.080, subd. (b)(1).)  A party seeking a protective order must show good cause for issuance of the order by a preponderance of the evidence.  (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) 

     

    Here, Defendants argue that Huang should not be required to provide signed verifications to the written discovery propounded by Plaintiff, including Plaintiffs Request for Admissions, set one, because counsel for Defendants has not been in contact with him and his whereabouts are unknown.  Defendants also argue that since PV accepted service of process in this case on Huang’s behalf per Civil Code section 1939.33, subdivision (a), PV therefore represents Huang in the litigation and the written discovery responses provided to Plaintiff and verified by PV on Huang’s behalf are sufficient.  In opposition, Plaintiff argues that per Civil Code section 1939.33, subdivision (e), PV does not represent Huang, and Huang’s whereabouts being unknown is inconsequential. 

     

     The Court finds Defendants’ position to be without merit.  Under Civil Code section 1939.33, subdivision (a), a rental company is authorized to accept service of process and any other required documents on behalf of a foreign renter for any  accident or collision during the rental period, provided the foreign renter purchased liability insurance.  That code section provides:

     

    “When a rental company enters into a rental agreement in the state for the rental of a vehicle to any renter who is not a resident of this country and, as part of, or associated with, the rental agreement, the renter purchases liability insurance, as defined in subdivision (b) of Section 1758.85 of the Insurance Code, from the rental company in its capacity as a rental vehicle agent for an authorized insurer, the rental company shall be authorized to accept, and, if served as set forth in this section, shall accept, service of a summons and complaint and any other required documents against the foreign renter for any accident or collision resulting from the operation of the rental vehicle within the state during the rental period. If the rental company has a registered agent for service of process on file with the Secretary of State, process shall be served on the rental company’s registered agent, either by first-class mail, return receipt requested, or by personal service.”

     

    (Civ. Code, § 1939.33, subd. (a).)

     

                Per Civil Code section 1939.33, subdivision (e), that the rental company is obligated to accept service of process on behalf of the foreign renter does not create any other duty, obligation, or agency relationship between the rental company and the foreign renter.  That code section provides: “Notwithstanding any other law, the requirement that the rental company accept service of process pursuant to subdivision (a) shall not create any duty, obligation, or agency relationship other than that provided in subdivision (a).”  (Civ. Code, § 1939.33, subd. (e).)

     

                Thus, from its text, Defendants’ assertion that PV represents Huang in this litigation because PV accepted service of process on Huang’s behalf under Section 1939.33 is incorrect.  Accordingly, because no duty, obligation, or agency relationship has been created between PV and Huang, PV is not able to verify Huang’s responses to PV’s written discovery. 

     

    Defendants’ suggestion that there is no relevant case law on the issue or that it may be an issue of first impression is also incorrect.  A protective order based on “oppression” may issue to delay or excuse responses where, as here, counsel for a party to whom requests for admission are directed is unable to locate his client.  (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1583.)  A court may exercise discretion “to grant appropriate relief, on the basis of oppression, from RFAs . . . if: (1) the court is satisfied that the defendant is not evading the lawsuit or the discovery demand; and is unaware of their pendency and (2) that reasonable efforts have been made and are ongoing to find her and apprise her of the litigation and the discovery obligations it entails.”  (Ibid.)  As the Court of Appeal explained:

     

    “[T]he trial court’s discretion is not limited to ordering that the entire set of RFAs be deemed admitted or relieving the responding party from answering at all.  The court is empowered to fashion a remedy that will do justice in the situation with which it is confronted.  It may, for example, order that only some matters be deemed admitted.  Or it may relieve the defense form admitting or denying the RFAs on condition that it demonstrate a continuing and vigorous effort to locate the defendant. Or it may grant a specific extension of time within which to find the defendant. And, if the court is not satisfied that the defense has made sufficient efforts to locate the defendant, and certainly if there is a basis to reasonably suspect that the defendant is aware of the litigation and obligations for discovery but is attempting to evade those obligations, the court would be well justified in denying relief.”

     

    (Ibid.)

     

                Here, however, Defendants have not provided anything by way of evidence or argument that Huang is not evading the lawsuit or the discovery demand; and is unaware of their pendency, or that reasonable efforts have been made and are ongoing to find him and apprise him of the litigation and the discovery obligations it entails.  Defendants advance the declaration of counsel for Defendants, Stuart J. Liebman (“Liebman”), who simply states that he has no contact with Huang and his whereabouts are unknown.  (Declaration of Stuart J. Liebman, ¶ 2.)  The Court therefore finds that Defendants have failed to establish good cause for a protective order relieving Huang from providing verified responses to Plaintiff’s written discovery based on his absence from the litigation.   Accordingly, the Court denies the motion for protective order.

     

    To the extent Plaintiff’s opposition requests the Court to deem the matters specified in the RFA admitted, Plaintiff’s must request such relief upon noticed motion rather than by way of opposition to the motion for protective order.

     

  2. DEPOSITIONS

     

    Per Code of Civil Procedure section 2025.420, subdivision (a), “[b]efore, 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)(15).) “Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in [the discovery procedure] clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.) “A party seeking the protective order must show by a preponderance of the evidence that the issuance of a protective order is proper.” (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.)

     

  1. Huang

     

    With respect to Huang, Defendants once again argue that his absence constitutes good cause for a protective order precluding Plaintiff from taking his deposition.  According to Liebman, the laws of the People’s Republic of China prohibit the taking of any deposition of its citizens without prior government approval, and that anyone caught taking depositions in China could be subject to criminal penalties, arrest, detention, or deportation.  (Declaration of Stuart J. Liebman, ¶¶ 8, 11.)  Defendants have not, however, provided any authority in support of this claim. 

     

    As the only other driver involved in the subject collision, it would stand to reason that Huang’s testimony would be highly relevant and necessary to the defense.  Though Defendants claim that they are unable to locate Huang, they have not otherwise established that the burden, expense, or intrusiveness involved in Huang’s deposition clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence, or that it would lead to unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.  Accordingly, the Court denies the motion for protective order to preclude Huang’s deposition.

     

  2. Deponent

     

    With respect to Deponent, Defendants assert Plaintiff’s notice of Deponent’s deposition violates the attorney/client privilege and work product doctrine, and is overly broad, vague, irrelevant, and harassing.  Defendants do not indicate which portions of the notice or information sought by Plaintiff’s violates the attorney/client privilege and work product doctrine or is overly broad, vague, irrelevant, or harassing.  In opposition, Plaintiff contends that it seeks to depose “Ms. Keever”, who is ostensibly the person that signed Huang’s verifications in response to Plaintiff’s written discovery, to uncover the basis for their personal knowledge of the veracity of the responses.

     

The scope of the discovery statute is quite broad. (See Code Civ. Proc., § 2017.010 [“any party may obtain discovery regarding any matter, not privileged, that is relevant…”].) “For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [cleaned up] [emphasis original].)

 

            Here, Plaintiff’s deposition notice for Deponent seeks the person most knowledgeable with respect to PV’s responses to Plaintiff’s written discovery propounded on PV, PV’s affirmative defenses, and PV’s denial of liability for the collision.  As noted above, Defendants do not establish that any such information is privileged or in what manner Plaintiff’s deposition notice is overly broad, vague, irrelevant, or harassing.  Accordingly, the Court finds that Defendants have failed to establish that the burden, expense, or intrusiveness involved in Deponent’s deposition clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence, or that it would result in unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.  The Court therefore denies the motion for protective order to preclude Deponent’s deposition.

 

To the extent Plaintiff’s opposition requests the Court to enter evidentiary sanctions against Defendants for their failure to appear for deposition and compel their appearance for deposition, Plaintiff’s must request such relief upon noticed motion rather than by way of opposition to the motion for protective order.

 

CONCLUSION AND ORDER

 

Therefore, the Court denies Defendants’ motions for protective orders.

 

Further, the Court orders Defendants to pay an additional $60 in filing fees to the Clerk of the Court on or before September 7, 2022.

 

Defendants shall provide notice of the Court’s orders and file a proof of service of such.