Judge: Nick A. Dourbetas, Case: 2019-01111542, Date: 2022-07-22 Tentative Ruling
1. Motion to Compel Deposition (Oral or Written)
2. Motion to Compel Production
Motion to Compel Further Answers at Deposition:
Plaintiffs Richard Burkholder and Anita Burkholder’s motion to compel defendant Rose Jannuzzi to answer questions at deposition, permitting additional time to examine Ms. Jannuzzi, and compelling her attendance and further testimony at deposition, is GRANTED in part and DENIED in part. (Code Civ. Proc., §§ 2025.480 [authorizing motion to compel further responses to deposition questions upon resumption of deposition], 2025.290(a) [court’s authority to extend deposition time].)
The court finds that defendant Jannuzzi’s objections and/or failure to respond on grounds of “executive session” privilege lack merit; however, the current record is insufficient to support a finding that defendants have waived attorney-client privilege by relying on an “advice of counsel” defense. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 53-54 [“advice of counsel” defense generally]; Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1053 [where a defendant is not defending itself on the basis of advice received from counsel, the attorney-client privilege is not waived].)
The court orders that defendant Jannuzzi’s deposition is to resume at 10:00 AM on August 8, 2022, at the offices of plaintiffs’ counsel,
Kron & Card, LLP,
29122 Rancho Viejo Road, Suite 110
San Juan Capistrano, CA 92675.
Defendant Jannuzzi shall provide further responses to the questions set forth in moving parties’ Separate Statement, as well as reasonable follow-up questions, without objection, other than objections on grounds of attorney-client privilege.
This additional deposition session is not to exceed three hours.
The parties may agree in writing to conduct the additional deposition session at a different date, time, or location, or via remote means instead of in person.
Moving parties shall give notice.
Motion to Compel Compliance with Subpoena:
Plaintiffs Richard Burkholder and Anita Burkholder’s motion to compel third party Powerstone Property Management, Inc. to comply with plaintiffs’ deposition subpoena for production of business records is GRANTED in part and DENIED in part, as modified below. (Code Civ. Proc., § 1987.1 [authoring motion to compel compliance with records subpoena, including court’s discretion to modify subpoena].)
Demand Nos. 1-14, 20-25, and 30-34: Granted in part. Deponent shall produce all documents responsive to these requests in its possession, custody, and/or control, with the following limitations: (1) responsive records shall be limited to the time period of January 1, 2017, through January 1, 2021; (2) records which are contended to be subject to attorney-client privilege and/or the attorney work-product doctrine shall not be produced; as to documents withheld on these grounds, a privilege log shall be produced. Defendants have not justified their other objections (overbreadth, privacy), which objections are overruled.
Demand Nos. 15-19: Denied. These requests specifically seek communications with counsel, which are privileged; as discussed above, plaintiffs have not shown the privilege has been waived via assertion of an “advice of counsel” defense.
Demand Nos. 26-29: Granted in part. Deponent shall produce all documents responsive to these requests in its possession, custody, and/or control, with the following limitations: (1) responsive records shall be limited to the time period of January 1, 2017, through January 1, 2021; (2) responsive records are limited to those relating to any works of improvement that involved view-related issues, including, but not limited to view protections, view obstructions, and cross property views; and (3) records which are contended to be subject to attorney-client privilege and/or the attorney work-product doctrine shall not be produced; as to documents withheld on these grounds, a privilege log shall be produced.
Moving parties shall give notice.