Judge Salvatore Sirna, Case Number: 21PSCV00399, Date: 2023-11-16 Tentative Ruling

Judge: Salvatore Sirna, Case: 21PSCV00399, Date: 2023-11-16 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 21PSCV00399 Hearing Date: January 29, 2024 Dept: G

Plaintiff Bassett Unified School District’s Motion for Protective Order

Respondent: Defendant Del Terra Real Estate Services, Inc.

TENTATIVE RULING

Plaintiff Bassett Unified School District’s Motion for Protective Order is DENIED.

BACKGROUND

This is a breach of contract action arising from an agreement to provide construction management services. In April 2015, Plaintiff Bassett Unified School District (BUSD) entered into a written agreement with Defendant Del Terra Real Estate Services, Inc. (Del Terra) in which Del Terra agreed to provide construction management services for BUSD’s new and existing construction projects. In 2018 and 2019, the agreement between BUSD and Del Terra was extended. Subsequently, BUSD alleges Del Terra breached the agreement by overbilling BUSD and failing to maintain proper records.

On May 17, 2021, BUSD filed a complaint against Del Terra and Does 1-100, alleging the following causes of action: (1) breach of contract, (2) breach of fiduciary duty, (3) negligence, (4) intentional misrepresentation, (5) constructive fraud, and (6) negligent misrepresentation.

On September 17, 2021, BUSD filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action. On January 4, 2022, the court sustained a demurrer by Del Terra to BUSD’s fourth and fifth causes of action without leave to amend.

On February 3, 2022, Del Terra filed a cross-complaint against BUSD and Roes 1-100, alleging the following causes of action: (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) declaratory relief.

On December 6, 2023, BUSD filed the present motion. A hearing on BUSD’s motion is set for January 29, 2024, with a final status conference on July 10 and a jury trial on July 23.

ANALYSIS

BUSD moves for a protective order to preclude or limit the deposition of Dolores Rivera. For the following reasons, the court DENIES their motion.

Legal Standard

"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) [interrogatories], 2031.060, subd. (b) [production of documents], 2033.080, subd. (b) [requests for admission].) Such orders may include excusing the party from answering the discovery requests at issue, limiting the number of discovery requests, or extending the time to respond to discovery requests. (Code Civ. Proc., §§ 2030.090, subd. (b), 2031.060, subd. (b), 2033.080, subd. (b).) The court has considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

Discussion

On November 21, 2023, Del Terra served a notice of deposition of Rivera on BUSD that was set for December 20, 2023. (Warren Decl., ¶ 3.) On November 27, 2023, BUSD’s counsel sent an email to Del Terra’s counsel that objected to the deposition of Rivera and sought to meet and confer. (Warren Decl., ¶ 4.) On December 5, 2023, Del Terra’s counsel responded to BUSD’s meet and confer correspondence with an email. (Warren Decl., ¶ 5; Nguyen Decl., ¶ 11.) Based on these averments, the court finds parties have adequately met and conferred on the requested protective order.

In this case, BUSD moves for a protective order on the grounds that the deposition of Rivera, who is a member of BUSD’s board, would uncover matters that are privileged pursuant to the deliberate process privilege. In County of Los Angeles v. Superior Court (1975) 13 Cal.3d 721, our supreme court recognized the “fundamental, historically enshrined legal principle that precludes any judicially authorized inquiry into the subjective motives or mental processes of legislators.” (Id., at p. 726.) And subsequent courts have applied this principle to the boards of local school districts. (See, e.g., Governing Board v. Superior Court (1985) 167 Cal.App.3d 1158, 1161-62 [mental processes of governing board members in quasi-judicial proceedings not subject to discovery].)

Furthermore, “[i]t is the general rule in both California and federal courts that the heads of agencies and other top governmental executives are normally not subject to depositions.” (Id., at p. 1467-1468.) “An exception to this general rule exists concerning top officials who have direct personal factual information pertaining to material issues in an action. [Citations.] [¶] A top governmental official may, however, only be deposed upon a showing that the information to be gained from such a deposition is not available through any other source. [Citations.]” (Id., at p. 1468, quoting Church of Scientology of Boston v. I.R.S. (D. Mass. 1990) 138 F.R.D. 9, 12.) “Thus, where a party seeks to depose a high government official, and the official moves for a protective order, the burden is on the deposing party to show that compelling reasons exist for permitting the deposition.” (Contractors’ State License Bd. v. Superior Court (2018) 23 Cal.App.5th 125, 132.)

Here, BUSD argues Nagle v. Superior Court (1994) 28 Cal.App.4th 1465 bars Rivera’s deposition. In opposition, Del Terra argues Nagle is inapplicable because Rivera was a school board member and not a top government executive. But courts have found members of government boards to qualify as such high government officials. (Contractors' State License Bd at p. 131 [collecting cases].)

In this case, Del Terra claims Rivera was involved in direct communications and meetings with Del Terra that occurred outside of closed board sessions, praised BUSD’s former superintendent, Dr. Alex Rojas, for his work, was involved in negotiations of the amended 2019 agreement between BUSD and Del Terra, and had personal knowledge regarding the approval of the work performed by Del Terra and the budgeting that is now subject to dispute. (Opp., p. 8:11-15; Nguyen Decl., Ex. C, D.) Del Terra also claims Rivera participated in meetings with Del Terra CEO Luis Rojas and other private citizens regarding Del Terra’s work. (Opp., p. 9:7-10.) Last, Del Terra claims BUSD has stated they are unable to provide emails from Dr. Rojas. (Nguyen Decl., Ex. B.) As a result, Del Terra states Rivera’s deposition is of utmost importance as the above demonstrates Rivera was BUSD’s representative in interactions and communications with Del Terra regarding its construction and project management work. (Opp., p. 9:20-23.)

Based on the above, the court finds Del Terra adequately established compelling reasons exist for ordering Rivera’s deposition. And to the extent issues of deliberative process privilege arise, BUSD failed to demonstrate a protective order is the appropriate remedy. While BUSD attempts to establish good cause for a protective order based on hypothetical deposition questions that have not been asked, the court can just as easily address these issues of privileges when the actual questions are asked and objections asserted during deposition.

Accordingly, BUSD’s motion is DENIED.

CONCLUSION

Based on the foregoing, BUSD’s motion for a protective order is DENIED.