Judge: Serena R. Murillo, Case: 20STCV10542, Date: 2022-12-05 Tentative Ruling

Case Number: 20STCV10542    Hearing Date: December 5, 2022    Dept: 29

TENTATIVE

Plaintiffs Julia Roper and Eduardo Martorell’s motion for a protective order is DENIED without prejudice. Both parties’ request for sanctions is DENIED.

Legal Standard

Code of Civil Procedure section 2025.420(a) states that, “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  “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…”  (CCP § 2025.420(b).)  The issuance and formulation of protective orders are to a large extent discretionary.  (See Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

Code of Civil Procedure § 2030.090(a) provides in relevant part: “When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” “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. This protective order may include, but is not limited to, one or more of the following directions:
....

(6) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a certain way.

(Code Civ. Proc. § 2030.090(a)(b).)

Evidence Code section 1060 provides for a trade secret privilege as follows: “If he or his agent or employee claims the privilege, the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.” (Evid. Code, § 1060.) For purposes of Evidence Code section 1060, et seq., “ ‘[t]rade secret’ means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: [¶] (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and [¶] (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (Civ. Code, § 3426.1, subd. (d); Evid. Code, § 1061, subd. (a)(1); see Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1389.)

“The test for trade secrets is whether the matter sought to be protected is information (1) which is valuable because it is unknown to others and (2) which the owner has attempted to keep secret.”  (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1454.) 

Discussion

Plaintiffs assert that they served responses to Defendant’s written discovery requests along with a stipulated proposed confidentiality and protective order (to maintain the confidentiality of information and other materials sought by Defendant’s requests that are proprietary information and confidential information and records). Plaintiffs assert the materials Defendant seeks to elicit through his discovery requests, and inevitably through deposition testimony, relate to private company financial information, which are of the utmost important private, confidential, proprietary, and trade secret material of a business. Defendant seeks specific documents related to the financials of Plaintiff Martorell’s law practice, including its monthly income at the time of the incident, the total income for the three calendar years prior to the incident, and “any and all” documents relating to Plaintiff Martorell’s calculation of lost earnings.

In opposition, Defendant first argues that the motion was not made promptly. Second, Defendant contends there is no good cause for a protective order because Plaintiffs do not identify what the information or documents are (i.e., balance sheets, pay stubs, billing records, tax returns), do not explain how they would “show exactly how much money the firm makes, how profitable it is, its revenues, its salary expenses – essentially how it operates,” do not explain how their disclosure would cause injury, or distinguish their situation from the thousands of other cases with loss or earnings claims where such information is routinely sought and produced.

The cited provisions of the Code of Civil Procedure do not specify a time limit for a party to bring a motion for a protective order. As such, the argument that the motion is untimely is unavailing.

However, as Plaintiffs admit, the motion is not directed at any specific discovery or information requested by Defendant.  Plaintiffs do not submit any evidence for the court to determine whether it appears likely that Defendant is seeking the disclosure of any trade secret, proprietary or confidential information, such as a declaration by anyone establishing that Plaintiffs’ trade secrets will be jeopardized if a protective order is not entered.  (Civ. Code, § 3426.1(d); Whyte, 101 Cal.App.4th at 1454; see Bridgestone/Firestone, Inc., (1992) 7 Cal.App.4th at 1389.) 

Moreover, Plaintiffs argue that the materials Defendant will inevitably seek through deposition relate to private company financial information, but they do not identify any specific requests in the written discovery or deposition notice for which a protective order is required or requested.  Among other things, Plaintiffs rely on CCP § 2025.420(a), which states that “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order,” but Plaintiffs’ motion seeks to protect far more than any information sought in a deposition.  Yet, Plaintiffs fail to cite any authority permitting the court to issue the broad protective order sought with no showing that Defendant is seeking trade secrets or confidential or proprietary information. 

Therefore, the motion is denied.  The denial is without prejudice to the parties’ right to voluntarily enter into the stipulation at issue.  The motion is also denied without prejudice to Plaintiffs’ right to seek specific orders in connection with specific discovery in this case, and to provide applicable statutory and/or case authority in support of the relief sought. 

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, 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.

The Court finds both parties acted with substantial justification and thus, the requests for sanctions are denied.

Conclusion

Accordingly, Plaintiffs’ motion for a protective order is DENIED without prejudice. Both parties’ request for sanctions is DENIED.

Moving party is directed to give notice.