Judge: Michael P. Linfield, Case: 19STCV45653, Date: 2022-12-13 Tentative Ruling

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Case Number: 19STCV45653    Hearing Date: December 13, 2022    Dept: 34

SUBJECT:         Motion for Protective Order and Motion to Stay and Quash the Deposition Subpoena of Harry Skalsky and Request for Monetary Sanctions Against Defendants and Defendants’ Counsel

Moving Party:  Plaintiffs Nicole Abramson and Douglas Stork

Resp. Party:    Defendants Anita Kovacic, Marine View Management, Inc., and BLK Properties, LLC

Plaintiffs’ Motion is GRANTED. The Court issues a protective order regarding any discovery of Harry Skalsky. The protective order shall cease to be effective if Plaintiffs designate Mr. Skalsky as an expert or percipient witness. The Parties’ respective Requests for Sanctions are DENIED.

BACKGROUND:

On December 17, 2019, Plaintiffs Nicole Abramson and Douglas Stork filed their Complaint against Defendants Anita Kovacic, Marine View Management, Inc., and BLK Properties, LLC on causes of action for breach of implied warranty of habitability, negligence, and breach of contract. This case regards damages Plaintiff allege to have suffered and continue to suffer due to the mold in their home.

On April 6, 2021, Plaintiffs filed their First Amended Complaint.

On June 8, 2021, Defendants filed their Answer to the First Amended Complaint.

On November 15, 2022, Plaintiffs filed their Motion for Protective Order and Motion to Stay and Quash the Deposition Subpoena of Harry Skalsky and Request for Monetary Sanctions Against Defendants and Defendants’ Counsel. 

On November 30, 2022, Defendants filed their Opposition and Request for Monetary Sanctions Against Plaintiffs and Plaintiffs’ Counsel.

On December 6, 2022, Plaintiffs filed their Reply.

ANALYSIS:

I.           Legal Standard

“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(b).) A protective order may direct “[t]hat the deposition not be taken at all.” (Code Civ. Proc., § 2025.420(b)(1).)

“If a subpoena requires the attendance of a witness . . . before a court . . . or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. . . .” (Code of Civ. Proc., § 1987.1, subd. (a).)

Courts have considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

II.        Discussion

Plaintiffs move the Court to issue a protective order or to quash the subpoena served upon Harry Skalsky, or to stay the deposition. (Motion, pp. 7:23–24, 10:25–27.) Plaintiffs argue that the Court should grant this relief because Mr. Skalsky, who they claim was hired as their consultant in November 2019 in order to test the mold at their home, is not a percipient witness and that the work product doctrine applies here. (Id. at pp. 4:15 – 20, 5:11–16.) Plaintiffs further argue that a deposition of Mr. Skalsky and any work he performed would only become discoverable if and when he is designated as an expert. (Id. at p. 5:24–27.)

Defendants oppose the Motion on substantive and procedural grounds. Substantively, Defendants argue that Mr. Skalsky is a percipient witness and that the Court already found as such in its Minute Order dated August 29, 2022. (Opposition, pp. 4:4–6, 5:6–9.) Procedurally, Defendants argue that the Motion is defective because: (1) a motion to quash should have been filed pursuant to Civil Procedure section 1987.1 instead of a motion for protective order because this matter involves a subpoena rather than a deposition notice; (2) no separate statement has been filed; and (3) Plaintiffs have failed to meet and confer in good faith on regarding the Motion. (Id. at pp. 3:1–3, 3:16–17, 7:1–2.)

Plaintiff argues in their Reply: (1) that the relief Plaintiffs seek and the grounds upon which they seek it is clear in the moving papers; (2) Plaintiffs have never identified Mr. Skalsky as a percipient witness; and (3) that, pursuant to California Rules of Court, rule 3.1345, subdivision (a), a separate statement is only required for a motion to quash when the motion to quash is directed to the production of documents. (Reply, pp. 2:13–14, 2:21–22, 5:15–19.)

Plaintiff has the better of the argument.

As to the substantive issues, there is no indication that Plaintiffs have identified Mr. Skalsky as a percipient witness, and, contrary to Defendants’ claims, the Court did not do so in its Minute Order dated August 29, 2022. (In fact, that Minute Order does not mention Mr. Skalsky’s name a single time.) Plaintiffs’ counsel has the right to create work product in anticipation of litigation, which is what appears to have happened here. Plaintiffs hired Mr. Skalsky in November 2019 and filed their Complaint on December 17, 2019.

Given that Mr. Skalsky appears to have been hired to consult for Plaintiffs in anticipation of litigation, Plaintiffs correctly note that a deposition of Mr. Skalsky and any work he performed would only become discoverable if and when he is designated as an expert.

As to the procedural issues, it is long established that the law respects form less than substance. (Civ. Code, § 3528.) In addition, courts have considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

Defense Counsel is certainly aware that were the Court to deny the Motion because the wrong authority was cited, Plaintiffs would simply refile the Motion citing the correct authority. That would be a waste of judicial economy and harmful to the Parties, who would incur additional legal fees. In any case, as the deposition at issue involves protected work product, there is no need for a separate statement or a meet and confer.

The Court GRANTS Plaintiffs’ Motion and issue a protective order regarding any discovery of Harry Skalsky.

III.     Requests for Sanctions

“The court shall impose a monetary sanction under Chapter 7 . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.420, subd. (h).)

“[I]n making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).)

The Court does not find that sanctions would be appropriate here. The Parties had a reasonable dispute about whether Mr. Skalsky could be deposed prior to being designated as an expert. The Court DENIES the Parties’ respective Requests for Sanctions.

IV.       Conclusion

Plaintiffs’ Motion is GRANTED. The Court issues a protective order regarding any discovery of Harry Skalsky. The protective order shall cease to be effective if Plaintiffs designate Mr. Skalsky as a percipient or expert witness. The Parties’ respective Requests for Sanctions are DENIED.