Judge: Ronald F. Frazier, Case: 37-2020-00033420-CU-NP-CTL, Date: 2023-08-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 17, 2023

08/18/2023  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Ronald F. Frazier

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Civil - Unlimited  Non-PI/PD/WD tort - Other Discovery Hearing 37-2020-00033420-CU-NP-CTL WILSON VS REED [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 02/23/2023

Plaintiff's Motion for Order Directing Compliance with Subpoena to Carleen Berry is DENIED. (ROA 176.) Plaintiff's Motion for Order Directing Compliance with Subpoena to Chris Riley is also DENIED. (ROA 177.) Plaintiff brings these motions pursuant to Code of Civil Procedure section 1987.1. Carleen Berry and Chris Riley are not parties to this action. Accordingly, Plaintiff was required to serve these individuals with notice of her motion and copies of the moving papers so that they may have an opportunity to be heard. Her proofs of service of these motions, which the court notes are both unsigned, indicate these individuals were not served with the moving papers.

As to Plaintiff's Motion for Order Directing Compliance with Subpoena to Gregory Cobb, the court will hear this matter. (ROA 175.) This is a malicious prosecution action. Plaintiff is seeking an order from the court to depose Defendant's attorney, Gregory Cobb.

'Depositions of opposing counsel are presumptively improper, severely restricted, and require 'extremely' good cause – a high standard.' (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562 – a Fourth District, Division 3 case.) 'There are strong policy considerations against deposing an opposing counsel. The practice runs counter to the adversarial process and to the state's public policy to '[p]revent attorneys from taking undue advantage of their adversary's industry and efforts.'' (Ibid., citing Code Civ. Proc. § 2018.020(b).) 'To effectuate these policy concerns, California applies a three-prong test in considering the propriety of attorney depositions.

First, does the proponent have other practicable means to obtain the information? Second, is the information crucial to the preparation of the case? Third, is the information subject to a privilege?' (Carehouse at p. 1563.) In this case, however, Mr. Cobb is not merely Defendant's counsel in this case. Mr. Cobb also represented Defendant in the underlying case that is the subject of this malicious prosecution action.

Mr. Cobb filed an opposition to the motion. Therein, he does not dispute his client has raised a defense of advice of counsel. The attorney-client privilege is waived upon assertion of this defense. (Gaab, et al., Cal. Practice Guide: Civ. Pro. Before Trial CLAIMS AND DEFENSES (The Rutter Group 2022) ¶ Calendar No.: Event ID:  TENTATIVE RULINGS

2922216  12 CASE NUMBER: CASE TITLE:  WILSON VS REED [IMAGED]  37-2020-00033420-CU-NP-CTL 4:137.) Indeed, the practice guide cautions that '[t]he client and counsel must carefully consider whether to assert an advice of counsel defense, since doing so will allow the opposing party to obtain discovery of all communications, time sheets and other material relevant to prior counsel's advice.' (Id.

at ¶ 4:138.) The factual basis as presented in the motion is very minimal. Plaintiff asserts the deposition is 'necessary' because Defendant is asserting an advice of counsel defense in this case. (Delman Decl. ¶ 6.) It is Plaintiff's burden to demonstrate the information is not merely necessary but crucial to preparation of the case, and that Plaintiff has no other means to obtain the crucial information.

Plaintiff's counsel also states '[n]otes that Mr. Cobb made and used as an exhibit at the restraining order hearing in a different action that was held the day before the underlying action mention many alleged facts that Mr. Cobb detailed in the notes, and Plaintiff is entitled to know who told Mr. Cobb those purported facts and when he learned them.' (Ibid.) In opposition, Mr. Cobb asserts his deposition is not 'necessary' because all the information Plaintiff needs is already contained in 'the notes.' Mr. Cobb also asserts the portions of the 'notes' pertaining to Carleen Berry are not relevant to this action. Mr. Cobb further asserts his deposition is not necessary because facts regarding the 'notes' are contained in his declaration in support of Defendant's motion for summary judgment.

The court will hear from counsel to clarify the information sought in the proposed deposition of Mr. Cobb and whether this information is crucial to the preparation of Plaintiff's case.

Mr. Cobb asserts the legal basis upon which Plaintiff brings her motion – section 1987.1 of the Code of Civil Procedure – is improper because this section governs motions to quash, implying this Code section does not govern this motion. This is incorrect. When a party in litigation issues a subpoena, the statute authorizes any party or witness to make a motion for 'an order quashing the subpoena entirely, modifying it, or directing compliance with it...' (Code Civ. Proc. § 1987.1(a).) Mr. Cobb asserts Plaintiff has issued multiple subpoenas directed to him and that the subpoenas are duplicative. As the court understands it, the first subpoena included both a request for documents and a deposition demand, but the deposition never went forward because Plaintiff's counsel voluntarily took it off calendar due to illness. (Delman Decl. ¶ 7.) The deposition was then re-noticed with a new subpoena. Absent other facts, the court does not view the prior subpoena as a bar to Mr. Cobb's deposition by way of a new subpoena.

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