Judge Michael P. Linfield, Case 21STCV35467 2022-09-15 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV35467, Date: 2022-09-15 Tentative Ruling

Case Number: 21STCV35467 Hearing Date: September 15, 2022 Dept: 34

SUBJECT: Motion by Defendants Jeffrey Sakson, as Trustee of the Sakson Family Trust, and Duke Property Management, Inc. for Protective Order Regarding the Plaintiff’s Deposition Subpoena to Ambiente Constructions and Design Corp. and Request for Sanctions

Moving Party: Defendants Jeffrey Sakson, as Trustee of the Sakson Family Trust and Duke Property Management, Inc. (“Defendants”)

Resp. Party: None

Defendants Jeffrey Sakson, as Trustee of the Sakson Family Trust and Duke Property Management, Inc.'s Motion for a Protective Order is GRANTED as to Requests for Production of Documents Nos. 1 and 2 and Deposition Topic No. 2 of Plaintiff Suzanne Porush's Deposition Subpoena to third party Ambiente Construction and Design Corp. dated August 1, 2022. Defendants' Motion for a Protective Order is DENIED as to Deposition Topic No. 1.

I. BACKGROUND

On September 27, 2021, Plaintiff Suzanne Porush (“Porush”) filed a complaint against Defendants Dean Sherry, Paul Colacino, Dennis Sakson, Duke Property Management, Inc. alleging the following causes of action:

1. Breach of Contract

2. Breach of Implied Warranty of Habitability/ Tenantability (CCC Sec. 1941.1 and H&S Code 17920.3 et seq.)

3. Breach of Quiet Enjoyment

4. Negligence

5. Nuisance

6. Breach of Implied Covenant of Good Faith and Fair Dealings

7. Intentional Infliction of Emotional Distress

On December 30, 2021, Plaintiff Suzanne Porush filed a First Amended Complaint against Defendants Dean Sherry, Paul Colacino, Dennis Sakson, Duke Property Management, Inc. alleging the following causes of action:

1. Breach of Contract

2. Breach of Implied Warranty of Habitability/ Tenantability (CCC Sec. 1941.1 and H&S Code 17920.3 et seq.)

3. Breach of Quiet Enjoyment

4. Negligence

5. Nuisance

6. Breach of Implied Covenant of Good Faith and Fair Dealings

7. Intentional Infliction of Emotional Distress

On February 14, 2022, Cross-Complainant Jeffery Sakson, Trustee of the Sakson Family Trust and Cross-Complainant Duke Property Management, Inc. filed a cross-complaint against Cross Defendant DC Danco Air Conditions Co. alleging the following causes of action:

1. Negligence

2. Breach of Contract

3. Implied Equitable Indemnity

4. Implied Contractual Indemnity

5. Contribution

6. Apportionment of Fault

7. Declaratory Relief

On August 19, 2022, Defendants Jeffrey Sakson, as Trustee of the Sakson Family Trust and Duke Property Management, Inc. moved the Court “for a protective order to prevent the plaintiff SUZANNE PORUSH (“Plaintiff”) from deposing the person most knowledgeable of third party Ambiente Construction and Design Corp. (“ACDC”) on topics that are overbroad, burdensome, oppressive, harassing, and not calculated to lead to the discovery of admissible evidence, and from issuing requests to ACDC for production of documents that are overbroad, burdensome, oppressive, harassing, and not calculated to lead to the discovery of admissible evidence. Defendants also will and hereby do move the Court to prevent Plaintiff from improperly seeking documents from any party in relation to this action, including ACDC. Defendants will and hereby move the Court for an order that Plaintiff and/or her attorney pay as sanctions in the sum of $2023.75 as the reasonable costs and attorney’s fees incurred by Defendants for this Motion.” (Motion for Protective Order, p. 2:9-18.) No opposition was filed with the Court.

II. ANALYSIS

A. Legal Standard

1. Motion for a Protective Order

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

“It is well established, in California and elsewhere, that a court has both the inherent authority and responsibility to fairly and efficiently administer all of the judicial proceedings that are pending before it, and that one important element of a court's inherent judicial authority in this regard is ‘the power . . . to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.’” (People v. Engram (2010) 50 Cal.4th 1131, 1146, citing Landis v. North American Co. (1936) 299 U.S. 248, 254-255.)

Code of Civil Procedure section 916 states, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters¿embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”¿ (CCP § 916,¿subd. (a).)¿ An appeal from an order denying an anti-SLAPP motion divests the trial court of jurisdiction to conduct any “further trial court proceedings on the merits upon the causes of action affected by the motion.”¿ (Varian Medical Systems, Inc. v. Delfino¿(2005) 35 Cal.4th 180, 186.)¿

Under California law, trial court proceedings are to be stayed on all matters that are embraced in or affected by an appeal. (Id. at p. 189.) “[A] proceeding affects the effectiveness of the appeal if the very purpose of the appeal is to avoid the need for that proceeding. In that situation, the proceeding itself is inherently inconsistent with a possible outcome on appeal and therefore must be stayed... ” (Id. at p. 190.)

2. Monetary Sanctions

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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 § 2023.030(a).)

B. Discussion

1. Motion for a Protective Order

Porush served nonparty ACDC with a Deposition Subpoena for Personal Appearance issued on August 1, 2022. (Cohen Decl., ¶ 1, Ex. A.) Defendants find the Requests for Production of Documents Nos. 1 and 2 and Deposition Topics Nos. 1 and 2 “overbroad, burdensome, oppressive, and harassing, and not calculated to lead to the discovery of admissible evidence.” (Email from Mitch Cohen to Shuki Greer et al., August 2, 2022 at 3:12 PM, Cohen Decl., ¶ 9, Ex. E.) Defendants find the remainder of the deposition production requests and deposition topics “limited to discovery of documents and testimony relating to the PREMISES, i.e., 9352 ½ W. Olympic Blvd.” (Id.)

The Court finds Requests for Production of Documents Nos. 1 and 2 overbroad, burdensome, and oppressive. (See Cohen Decl., ¶ 1, Ex. A.) However, Deposition Topic No. 1 relates to the training, education, and experience of ACDC’s agents and employees and is sufficiently related to the claims presented in Porush’s Complaint. (See Cohen Decl., ¶ 1, Ex. A; Complaint, ¶¶ 23, 26-31.) Deposition Topic No. 2 is not sufficiently related in scope to the Subject Property, and is overbroad, burdensome and oppressive as a result.

2. Monetary Sanctions

The Court declines to apply monetary sanctions in regard to the present motion.

III. CONCLUSION