Judge Serena R. Murillo, Case 20STCV47832 2022-12-13 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV47832, Date: 2022-12-13 Tentative Ruling

Case Number: 20STCV47832 Hearing Date: December 13, 2022 Dept: 29

TENTATIVE

Defendants’ Motion to Compel Production of Documents from Non-Party Peralta Community College District is GRANTED. Non-Party Peralta Community College District is ordered to comply with the Deposition Subpoena for Personal Appearance and Production of Documents and Things served on April 4, 2022, and produce the employment records described within Category Nos. Four and Five only. Defendants’ Request for Monetary Sanctions in an amount of $4,055.00 against Non-Party Peralta Community College District is DENIED.

Defendants’ Motion for Protective Order is GRANTED, in part, and DENIED, in part. Defendants’ request for a Protective Order requiring that a discovery referee be appointed and supervise any further depositions in this action, at the sole expense of Plaintiff’s counsel, Philip P. DeLuca of Law Offices of Philip P. DeLuca, is GRANTED. A Protective Order shall hereby issue appointing a discovery referee and requiring the attendance of the discovery referee at any further depositions taken in this action.

Defendants’ request for a Protective Order preventing Plaintiff and Plaintiff’s counsel of record, Philip P. DeLuca of Law Offices of Philip P. DeLuca, from conducting any further depositions of Defendant Peña Tovar in this action is DENIED.

Defendants’ Request for Monetary Sanctions is GRANTED. Plaintiff’s counsel of record, Philip P. DeLuca of Law Offices of Philip P. DeLuca, is ordered to pay monetary sanctions in the sum of $1,000.00 within thirty (30) days of notice of this Court’s Order.

Legal Standard

A. Legal Standard—Motion to Compel Production of Documents from Non-Party Peralta Community College District and for Monetary Sanctions

“The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring the person's attendance at a particular time and place to testify as a witness. It may also require a witness to bring any books, documents, electronically stored information, or other things under the witness's control which the witness is bound by law to produce in evidence.” (Code Civ. Proc., § 1985, subd. (a).)

Code of Civil Procedure section 1985.6 allows a party to issue a subpoena duces tecum in order to obtain an employee’s employment records. (Code Civ. Proc., § 1985.6.) “Employment records”, as defined by Code of Civil Procedure section 1985.6 include “books, documents, other writings, or electronically stored information pertaining to the employment of any employee maintained by the current or former employer of the employee . . . .” (Code Civ. Proc., § 1985.6, subd. (a)(3).)

“Any nonparty employee whose employment records are sought by a subpoena duces tecum may, prior to the date of production, serve on the subpoenaing party, the deposition officer, and the witness a written objection that cites the specific grounds on which production of the employment records should be prohibited.” (Code Civ. Proc., § 1985.6, subd. (f)(2).) “No witness or deposition officer shall be required to produce employment records after receipt of notice that [a] motion [to quash or modify subpoena] has been brought by an employee, or after receipt of a written objection from a nonparty employee, except upon order of the court in which the action is pending or by agreement of the parties, witnesses, and employees affected.” (Code Civ. Proc., § 1985.6, subd. (f)(3).)

“The party requesting an employee’s employment records may bring a motion under subdivision (c) of [Code of Civil Procedure] Section 1987 to enforce the subpoena within 20 days of service of the written objection. The motion shall be accompanied by a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the employment records and the employee or the employee’s attorney.” (Code Civ. Proc., § 1985.6, subd. (f)(4).)

Subdivision (c) of Code of Civil Procedure section 1987 states, after receiving an objection to the subpoena duces tecum for employment records, “upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions.” (Code Civ. Proc., § 1987, subd. (c).)

B. Legal Standard—Motion for Protective Order and Request for Monetary Sanctions

Code of Civil Procedure section 2025.420, subdivision (a) provides: “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.” (Code Civ. Proc., § 2025.420, subd. (a).) “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. This protective order may include, but is not limited to, one or more of the following directions: ¶(1) That the deposition not be taken at all. . . . ¶(5) That the deposition be taken only on certain specified terms and conditions. (Code Civ. Proc., § 2025.240, subd. (b)(1), (b)(5).)

“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.” (Code Civ. Proc., § 2025.420, subd. (h).)

Discussion

The Court presently considers the following two motions filed by Defendants Salvador Peña Tovar and KS Trans Service (collectively, “Defendants”): (1) Motion to Compel Production of Documents from Non-Party Peralta Community College District and for Monetary Sanctions of $4,055.00; and (2) Motion for Protective Order and Request for Monetary Sanctions in the Amount of $6,815.00. The addresses Defendants’ motions in turn, respectively.

A. Motion to Compel Production of Documents from Non-Party Peralta Community College District and for Monetary Sanctions

Defendants move for an Order compelling Plaintiff’s employer, Non-Party Peralta Community College District (hereinafter, “Non-Party College”), to produce certain categories of employment records and documents identified within a deposition subpoena, served upon Non-Party College on April 4, 2022. Specifically, Defendants request an Order requiring Non-Party College to produce the employment records described in Category Nos. Four and Five, which provide as follows:

4. PLAINTIFF’S salary, wages, compensation, commissions, bonuses, other monies or remuneration arising out of her employment, association or relationship with YOU;

5. PLAINTIFF’S benefits package(s) arising out of his employment, association or relationship with YOU, including but not limited to medical, dental, vision, chiropractic, or health care benefits or insurance coverage plans, 401(k), pension, retirement, or similar plans, worker’s compensation benefits, disability benefits, life insurance benefits, accident insurance benefits or to his benefits plans; including use or exercise by PLAINTIFF of such benefits[.]

(Brinson Decl., ¶ 8, Ex. A.) Defendants state, prior to and following the subject automobile collision, Plaintiff was employed by Non-Party College as an Adjunct Professor and Head Coach of Men’s Basketball. (Brinson Decl., ¶ 4.) Defendants further represent, pursuant to the allegations of the operative Complaint, Plaintiff has not returned to work at Non-Party College since the subject automobile collision, and has suffered income loss equal to approximately $400,000.00. (Ibid.) Defendants argue the employment records described in Category Nos. Four and Five are necessary to assess and analyze Plaintiff’s prayer for damages stemming from his personal injuries. Most relevantly, Defendants represent that, despite having been served with the subject subpoena on April 4, 2022, Non-Party College has failed to produce any documents responsive to Category Nos. Four and Five by the date of production, which was identified as April 20, 2022. (Brinson Decl., ¶ 9, Ex. A.)

The Court observes Plaintiff opposes Defendants’ request on procedural grounds only. The Court notes Plaintiff seemingly does not dispute the fact that the employment records and documents requested within Category Nos. Four and Five are relevant to the present action for the purposes of evaluating Plaintiff’s loss of income damages. Indeed, while Plaintiff issued an objection to the subpoena served upon Non-Party College by Defendants, Plaintiff only objected to those documents requested within Category Nos. One, Two, Three, Six, Seven, Eight, Nine, and Ten. (DeLuca Decl., ¶¶ 9, 14, Ex. 6.) Plaintiff never served an objection to those documents requested within Category Nos. Four and Five. (Ibid.) Succinctly, Plaintiff opposes Defendants’ Motion on the ground the subpoena served upon Non-Party College is now “moot” and may not be enforced as the date of production indicated therein has passed. (Opp., at p. 10:8-21.) In other words, Plaintiff indicates, as the date of production enumerated within the subpoena (April 20, 2022) has passed, Defendants were required to issue a revised subpoena with a date that is not expired. (Ibid.)

Following a consideration of the parties’ arguments and corresponding evidence, the Court concludes Defendants are entitled to an Order compelling Non-Party College’s production of the employment records described within Category Nos. Four and Five of the underlying subpoena, served upon Non-Party College on April 4, 2022. Initially, the Court observes, despite Plaintiff’s contentions, the subpoena served upon Non-Party College is not “moot”, and Non-Party College’s obligation to produce employment records responsive to Category Nos. Four and Five has not vanished. The Court notes neither Plaintiff nor Non-Party College objected to the production of employment records responsive to Category Nos. Four and Five. The Court further notes, while Plaintiff argues the deposition subpoena was effectively quashed by this Court following ruling upon Plaintiff’s Motion to Quash on June 28, 2022, such a representation is false. The Court’s Minute Order clearly provides that the deposition subpoena served upon Non-Party College would be quashed only as to Category Nos. One through Three and Six through Ten. The deposition subpoena remained effective and enforceable as to Category Nos. Four and Five. In short, the Court concludes Non-Party College’s obligation to produce employment records responsive to Category Nos. Four and Five did not “expire”, as Plaintiff represents, considering no party or employee objected to Non-Party College’s production of the same. Additionally, the Court concludes the documents responsive to Category Nos. Four and Five are clearly relevant and necessary for the purposes of evaluating a pertinent issue in this action, namely, Plaintiff’s allegations of lost wages as a result of the subject automobile collision. The Court concludes Non-Party College may be properly ordered to produce documents responsive to Category Nos. Four and Five, pursuant to Code of Civil Procedure section 1985.6. (Code Civ. Proc., § 1985.6, subd. (f)(4).)

Further, following an assessment of Defendants’ concurrent request for an award of monetary sanctions, the Court concludes monetary sanctions may not be issued against Non-Party College. Pertinently, other than requesting monetary sanctions within the Notice of Motion, Defendants produce no argument whatsoever within the present Motion for the purposes of demonstrating to this Court that monetary sanctions are proper. Indeed, Defendant’s Motion (i.e., memorandum of points and authorities) does not mention the word “sanctions” and does not proffer any argument demonstrating why such an award is warranted. The Court refuses to “make argument” on Defendants’ behalf.

Based on the foregoing, Defendants’ Motion to Compel Production of Documents from Non-Party Peralta Community College District is GRANTED. Non-Party Peralta Community College District is ordered to comply with the Deposition Subpoena for Personal Appearance and Production of Documents and Things served on April 4, 2022, and produce the employment records described within Category Nos. Four and Five only. Defendants’ Request for Monetary Sanctions in an amount of $4,055.00 against Non-Party Peralta Community College District is DENIED.

B. Motion for Protective Order and Request for Monetary Sanctions

Defendants move for a Protective Order preventing Plaintiff and Plaintiff’s counsel of record, Philip P. DeLuca of Law Offices of Philip P. DeLuca (hereinafter, “Plaintiff’s Counsel”), from conducting any further depositions of Defendant Peña Tovar in this action, pursuant to Code of Civil Procedure section 2025.420. (Code Civ. Proc., § 2025.420.) Defendants additionally move for a Protective Order requiring a discovery referee be appointed and supervise any further depositions in this action, at the sole expense of Plaintiff or Plaintiff’s Counsel, pursuant to Code of Civil Procedure section 639. (Code Civ. Proc., § 639.) Defendants further move for an Order awarding monetary sanctions against Plaintiff or Plaintiff’s Counsel, equal to a sum of $6,815.00, pursuant to Code of Civil Procedure section 2023.030. (Code Civ. Proc., § 2023.030.)

Defendants advance the present Motion on the ground the above-requested Protective Orders are necessary in order to shield Defendant Peña Tovar and Defendants’ Counsel from any further embarrassment and harassment caused by the unprofessional behavior of Plaintiff’s Counsel. Defendants instruct this Court to review the transcript of the second session of Defendant Peña Tovar’s deposition, which took place on April 18, 2022. (Natoli Decl., Ex. B.) Defendants represent a review of the deposition transcript reveals Plaintiff’s Counsel angerly scolded Defendant Peña Tovar during the deposition, stating “don’t act stupid with me”. (Id., Ex. B at pp. 83:2-85:4.) Defendants further represent a review of the deposition transcript reveals Plaintiff’s Counsel called Defendants’ counsel of record, Noelle M. Natoli of Clark Hill LLP (Defendants’ Counsel Natoli”), a “fucking bitch”. (Id., Ex. B at pp. 97:16-100:2.) The deposition record includes a statement made by Defendants’ Counsel Natoli which provides, “I’d like to make a record of the fact that the counsel just swore under his breath and called me a fucking bitch.” (Ibid.) Defendants’ Counsel Natoli submits a Declaration, declaring under penalty of perjury, “[d]uring the deposition, I saw Mr. DeLuca lean into his computer screen and, as if seething, mouth the words ‘Jesus Christ, you fucking bitch.’ It was during a colloquy we were having after I objected to one of his questions, and there is no doubt in my mind as to what I saw and that it was directed to me.” (Id., ¶ 5.) Defendants argue the requested Protective Orders are necessary as a result of Plaintiff’s Counsel’s repeated and unwarranted harassment and embarrassment of Defendant Peña Tovar and Defendants’ Counsel.

The Court observes, in Opposition, Plaintiff argues that the requested Protective Orders are not necessary as Plaintiff’s Counsel in no way harassed or embarrassed Defendant Peña Tovar or Defendants’ Counsel. Plaintiff’s Counsel vehemently denies that he called Defendants’ Counsel Natoli a “fucking bitch”. (DeLuca Decl., ¶¶ 34-40.) Plaintiff’s Counsel argues, while he did tell Defendant Peña Tovar not to “act stupid” during his deposition, Plaintiff’s Counsel argues this comment was “understandable” because Defendant Peña Tovar was acting evasive when responding to posed deposition questions. (Id., ¶¶ 29-33.) Furthermore, Plaintiff argues that the requested Protective Orders are not necessary as Plaintiff does not intend to depose Defendant Peña Tovar again or conduct any additional witness depositions.

Here, following a review of the arguments advanced by the parties, as well as the corresponding evidence, the Court concludes a Protective Order requiring the attendance of a discovery referee at any further depositions in this action is warranted, pursuant to Code of Civil Procedure section 2025.420. (Code Civ. Proc., § 2025.420, subd. (a), (b).) The Court observes it is undisputed between the parties that Plaintiff’s Counsel raised his voice at Defendant Peña Tovar during a line of deposition questioning, and thereafter, told Defendant Peña Tovar not to “act stupid”. (Natoli Decl., Ex. B at pp. 83:2-85:4.) The Court further observes the parties vigorously dispute whether or not Plaintiff’s Counsel called Defendants’ Counsel Natoli a “fucking bitch” under his breath during the deposition of Defendant Peña Tovar. Both Plaintiff’s Counsel and Defendants’ Counsel Natoli have submitted declarations, wherein they each state their positions as to whether or not this statement was wielded against Defendants’ Counsel Natoli. (Natoli Decl., ¶ 5; DeLuca Decl., ¶¶ 34-40.) Even considering this dispute between the parties, the Court concludes a review of the relevant deposition transcript reveals unprofessional and uncivil behavior exhibited by Plaintiff’s Counsel. The deposition transcript reveals various threatening statement advanced by Plaintiff’s Counsel. For example, following Defendant’s Counsel Natoli’s statement that the deposition was inching closer to the seven-hour mark, Plaintiff’s Counsel communicated his disagreement and informed Defendants’ Counsel Natoli that if she continues to take the position that the time for deposition had elapsed Plaintiff’s Counsel would add her firm “to [his] list” of firms against whom Plaintiff’s Counsel has obtained monetary sanctions. (Natoli Decl., Ex. B at pp. 142:22-143:2 [“I got sanctions against Littler Mendelson. I’ve got sanctions against Fisher Phillips. I’ve got sanctions against all the major firms in employment discrimination. I will add you to my list. There’s no problem with that.”].) Additionally, after Defendant Peña Tovar’s represented to Plaintiff’s Counsel that he did not remember his supervisor’s name, Plaintiff’s Counsel threatened to “keep [Defendant] here all day long.” (Id., Ex. B at p. 83:24-84:5.) While Plaintiff’s Counsel may suggest that his statement to Defendant Peña Tovar was warranted as Defendant was being evasive in identifying his supervisor, such behavior is unacceptable even where one attempts to justify the same as a form of zealous advocacy. The Court refers Plaintiff’s Counsel to the following statement advanced by the Court of Appeal:

It is axiomatic that an attorney must represent a client to the best of his or her ability. The attorney owes a duty to that client to present the case with vigor in a manner as favorable to the client as the rules of law and professional ethics permit. But besides being an advocate to advance the interest of the client, the attorney is also an officer of the court. [¶] California Rules of Court, rule 9.7, pertaining to the oath required when an attorney is admitted to practice law, concludes with, '"As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.'" These cautions are designed to remind counsel that when in the heat of a contentious trial, counsel's zeal to protect ad advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands.

(In re Marriage of Anka & Yeagar (2019) 31 Cal.App.5th 1115, 1117.) In sum, following a review of the evidence submitted, the Court concludes Plaintiff’s Counsel has exhibited unprofessional behavior which warrants appointing a discovery referee to oversee any further depositions in this action, at the expense of Plaintiff’s Counsel.

Additionally, the Court is not persuaded Defendants’ present request for a Protective Order is “moot”. While Plaintiff represents he does not intend to notice any further depositions of Defendant Peña Tovar, or any other witnesses, in this action, the Court finds a Protective Order is still warranted in the event Plaintiff changes his position regarding the need for further depositions in the future.

Further, the Court opines a Protective Order preventing any further deposition of Defendant Peña Tovar is not warranted. The Court observes dispositive issues of liability are disputed in this action. (DeLuca Decl., ¶ 2.) Prohibiting Plaintiff from commencing any further depositions of Defendant Peña Tovar, the individual alleged to have caused the subject automobile collision, will cause immense prejudice to Plaintiff. The Court concludes Defendants’ concerns regarding harassment and embarrassment during deposition will be properly ameliorated by way of a discovery referee. Accordingly, the Court finds a Protective Order preventing any further deposition of Defendant Peña Tovar is not warranted in the present action.

Lastly, the Court finds monetary sanctions may be properly awarded against Plaintiff’s Counsel, as the “attorney who unsuccessfully . . . opposes a motion for a protective order”. (Code Civ. Proc., § 2025.420, subd. (h).) The Court finds no justification for Plaintiff’s Counsel’s unprofessional and uncivil behavior. (Ibid.) Accordingly, the Court issued monetary sanctions against Plaintiffs’ Counsel equal to approximately $1,000 ($235 hourly rate multiplied by four hours for preparing Motion, reviewing Opposition, preparing Reply, and attending hearing, plus $60.00 filing fee). (Alfano Decl., ¶¶2-4.)

Based on the foregoing, Defendants’ Motion for Protective Order is GRANTED, in part, and DENIED, in part, as explained below.

Defendants’ request for a Protective Order requiring that a discovery referee be appointed and supervise any further depositions in this action, at the sole expense of Plaintiff’s counsel, Philip P. DeLuca of Law Offices of Philip P. DeLuca, is GRANTED. A Protective Order shall hereby issue appointing a discovery referee and requiring the attendance of the discovery referee at any further depositions taken in this action.

Defendants’ request for a Protective Order preventing Plaintiff and Plaintiff’s counsel of record, Philip P. DeLuca of Law Offices of Philip P. DeLuca, from conducting any further depositions of Defendant Peña Tovar in this action is DENIED.

Defendants’ Request for Monetary Sanctions is GRANTED. Plaintiff’s counsel of record, Philip P. DeLuca of Law Offices of Philip P. DeLuca, is ordered to pay monetary sanctions in the sum of $1,000.00 within thirty (30) days of notice of this Court’s Order.

Conclusion

Defendants’ Motion for Protective Order is GRANTED, in part, and DENIED, in part. Defendants’ request for a Protective Order requiring that a discovery referee be appointed and supervise any further depositions in this action, at the sole expense of Plaintiff’s counsel, Philip P. DeLuca of Law Offices of Philip P. DeLuca, is GRANTED. A Protective Order shall hereby issue appointing a discovery referee and requiring the attendance of the discovery referee at any further depositions taken in this action.

Moving party is ordered to give notice.