Judge Serena R. Murillo, Case Number: 22STCV26520, Date: 2023-10-04 Tentative Ruling

Judge: Serena R. Murillo, Case: 22STCV26520, Date: 2023-10-04 Tentative Ruling

Case Number: 22STCV26520 Hearing Date: October 4, 2023 Dept: 31

TENTATIVE

Plaintiff’s motion for a protective order is DENIED. Both parties’ request for sanctions is DENIED.

Objections

Defendant objects to Plaintiff’s declaration submitted with the reply, along with exhibits C-G attached to Plaintiff’s counsel’s declaration.

The general rule of motion practice is that new evidence is not permitted with reply papers. Specifically, points raised for the first time would deprive the respondent an opportunity to counter the argument. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)

The objection to the exhibits and Paragraphs 10-13 of the declaration is GRANTED.

Legal Standard

CCP section 2025.420(a) provides that “[b]efore . . . a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (CCP § 2025.420(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.” (CCP § 2025.420(b).) In fashioning a protective order, a court has the discretion to, among other things, order “[t]hat the deposition not be taken at all,” “[t]hat the deposition be taken only on certain specified terms and conditions,” or “[t]hat the deponent’s testimony be taken by written, instead of oral, examination.” (CCP § 2025.420(c)(1), (5), (6).)

The burden of proof is on the party seeking the protective order to show “good cause” for the order he or she seeks. (Fairmont Insurance Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) A motion for a protective order “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2030.090.) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

“In accordance with the liberal policies underlying the discovery procedures, California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172; Pettie v. Superior Court (1960) 178 Cal.App.2d 680, 687.) As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. (Pacific Tel. & Tel. Co., supra, 2 Cal.3d at p. 172.) Furthermore, California’s liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. (Id. at p. 173.) In doing so, the courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party's case or to efficacious settlement of the dispute.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1761.)

Discussion

As an initial matter, Plaintiff argues in the reply that Defendant’s opposition is untimely and should be disregarded.

“A trial court has broad discretion to overlook late-served papers and to resolve the matter on the merits.” (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 168 [“(E)ven if the service had been untimely, the trial court was vested with discretion to overlook the defect”]; see also Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [“A trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.”].) The court exercises its discretion and considers the merits of the opposition. Further, Plaintiff has filed a reply on the merits, even though she argues she was prejudiced by only having three court days to file the reply. Defendant only filed its opposition one day late. If Plaintiff is accounting for the court holiday on November 22, 2023 in excluding a day, that is of no fault of Defendant’s.

Plaintiff moves for a protective order precluding Donald Cole from attending her deposition. Plaintiff contends her that Donald Cole was present without notice as required under California Rule of Court (“CRC”) 3.1010(b). CRC rule 3.1010, subdivision (b) entitled “Appearing and participating in depositions” states: Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided: (1) Written notice of such appearance is served by personal delivery, e-mail, or fax at least five court days before the deposition.” (CRC 3.1010, subdivision (b).) Plaintiff contends Cole’s presence caused extreme annoyance, embarrassment, oppression and undue burden on Plaintiff. Additionally (or in the alternative), Plaintiff requests a protective order (1) denying questions related to Plaintiff’s medical documents and information at her deposition and instead that such answers be provided via written responses; (2) protecting such medical documents and information from distribution by Defendant and Defendant’s agents, subsidiaries, and employees as confidential information; and (3) ordering the Defendant to adhere to California Rule of Court 3.1010 by providing required notice of all appropriate attendees at any future deposition.

Additionally, Defendant’s counsel had appearances by two attorneys without noticing Plaintiff under CRC 3.1010(b), as required. Further, one of those attorneys has never been mentioned on any of Defendant’s filings and is, therefore, not Defendant’s “attorney of record.”

Plaintiff argues this lawsuit concerns Donald Cole’s alleged disability and age discrimination against Plaintiff; Donald Cole’s retaliatory distribution of Plaintiff’s medical information and distribution of false medical information about Plaintiff; and Donald Cole’s intimidation of Plaintiff. Therefore, she argues, the attendance of Donald Cole at Plaintiff’s deposition without proper notice caused extreme annoyance, embarrassment, oppression, and undue burden on Plaintiff. Plaintiff had a lawful right to have notice of and provide objection to such attendance before the Deposition occurred. Donald Cole’s surprise attendance caused serious injury to Plaintiff, requiring a stay of Plaintiff’s deposition.

Defendant in opposition states that Cole not only is the CEO of the company, he is the officer of Defendant C.W. Cole who verified the its discovery responses, and who has served as the main contact with Defendant’s counsel regarding this action. Sun Hi Ahn, Esq. is an of counsel attorney to Defendant’s counsel of record, Law Offices of Susan A. Rodriguez, APC and has served in that capacity for nearly a decade. Ahn’s appearance at the deposition should have been no surprise – she has participated in multiple telephonic phone conferences attended by Rodriguez and Plaintiff’s counsel. (Rodriguez Decl. ¶¶ 5-7.) Moreover, her participation is not a recent occurrence. Rodriguez made clear to Plaintiff’s counsel even before Mr. Braud was involved in the case, that Ahn was involved in the defense of the matter and that she should be copied on all communications. Ahn identified herself at the very beginning of the deposition as “an attorney for the defendant, C.W. Cole & Company, Incorporated.” (Rodriguez Decl. ¶ 9, Bernal Depo. at 5:13-16 Exh. D.) After Plaintiff’s counsel objected, Rodriguez informed him on the record that Ahn was of counsel to her firm.

Defendant also argues that Don Cole attended the zoom deposition using the “camera off” feature. In other words, only his name was visible on a blacked-out screen indicating that he was present. Moreover, Cole said nothing at all, made no sounds whatsoever, and made no visible gestures (he was “camera off”) during the deposition. (Rodriguez Decl. ¶ 13, Bernal Depo. at 12:24-13:13, Exh. D.)

Defendant contends that Plaintiff misreads CRC rule 3.1010. CRC rule 3.1010(a) establishes requirements for “taking depositions” by telephone, videoconference, or other remote electronic means as follows:

Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:

(1) Notice is served with the notice of deposition or the subpoena;
(2) That party makes all arrangements for any other party to participate in the deposition in an equivalent manner. However, each party so appearing must pay all expenses incurred by it or properly allocated to it;

(3) Any party or attorney of record may be physically present at the deposition at the location of the deponent with written notice of such appearance served by personal delivery, email, or fax, at least five court days before the deposition, and subject to Code of Civil Procedure section 2025.420. An attorney for the deponent may be physically present with the deponent without notice.

Defendant served notices of deposition calling for deposition via remote electronic means. Therefore, Defendant complied with the requirements of subsections (a)(1) and (a)(2). Defendant was not required to comply with subsection (a)(3) because it did not seek to “be physically present at the deposition at the location of the deponent.”

California Rule of Court 3.1010(b) is entitled “[a]ppearing and participating in depositions,” and states:

Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided:

(1) Written notice of such appearance is served by personal delivery, e-mail, or fax at least five court days before the deposition;
(2) The party so appearing makes all arrangements and pays all expenses incurred for the appearance.

Defendant argues that Plaintiff misreads this section to argue that Defendant was required to provide an additional notice for the designation of Don Cole as its officer representative and Sun Hi Ahn as its counsel. Plaintiff is mistaken. Instead, this section is commonly understood to grant parties the right to appear by telephonic or other remote electronic means at an in-person deposition, as long as they provide advance written notice. Jameson v. Desta (2013) 215 Cal. App. 4th 1144, 1175-1176 (citing Cal. Rules of Court 3.1010 for principle that a party, in this case an imprisoned Plaintiff, had the right to attend a deposition by telephonic or other remote electronic means).

The Court finds that good cause has not been shown to grant a protective order precluding Plaintiff’s deposition or limiting it in any way. First, the Court agrees that Defendant provided proper notice under CRC rule 3.1010(a), and that CRC rule 3.1010(b) applies when appearing remotely at an in-person deposition. In any event, even if there was improper notice as Plaintiff argues, the Court cannot order Cole not to be present, as he is entitled to be present under Code of Civil Procedure section 2025.420(b)(12). The Discovery Act does not specifically state who may or may not attend a deposition. But it recognizes that parties and their counsel have the right to be there. This is implicit in the statute dealing with protective orders which allows the court to exclude from a deposition “designated persons, other than the parties to the action and their officers and counsel.” (CCP § 2025.420(b)(12).) Therefore, a court has no power to grant a protective order barring a party from attending another's deposition even on a showing that the deponent will feel “intimidated” by the party's presence at the deposition. (Willoughby v. Sup.Ct. (Lui) (1985) 172 CA3d 890, 892.) Plaintiff argues in reply that it is well-recognized that it is within the discretion of the court to exclude certain corporate officers from a deposition if such an order is appropriate to the case. (Lowy Development Corp. v. Sup. Court (1987) 190 Cal.App.3d 317, 321 (finding a court was not prohibited from excluding “some of the officers, if an order is appropriate to the case” (emphasis in original) under the same substantive statute discussed in Willoughby v. Superior Court (1985) 172 Cal.App.3d 890, [as cited by Defendant’s Opposition, p.5, lns. 5-8, 16- 20], Cal. Code Civ. Pro. § 2019, a precursor statue to the current Cal. Code Civ. Pro. § 2025.420).) However, there is no evidence presented to the court that Defendant has other officers.

Moreover, Defendant contends that Cole did not do anything during this deposition, and thus, it appears there is no annoyance, embarrassment, oppression, and undue burden to which the Court could protect Plaintiff from. While Plaintiff provided a factual basis in the reply for her assertion that Defendant in the past shared her medical records, Defendant objected to this new evidence and this objection was sustained. The Court will also note that Plaintiff has filed a disability lawsuit against Defendant, and thus, her medical records will be at the heart of this lawsuit. As such, Plaintiff has not shown good cause.

Plaintiff’s request for sanctions under CCP sections 2023.030 for the alleged misuse of discovery is denied. In a recent case, City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504, the Court of appeal concluded that: "sections 2023.010 and 2023.030 do not independently authorize the trial court to impose monetary sanctions for misuse of discovery.” (Id.)

Moreover, Plaintiff requests sanctions under CCP section 2025.420, which states: “The court shall impose a monetary sanction 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.” (CCP section 2025.420.)

However, Plaintiff is the unsuccessful party and cannot be awarded sanctions.

Defendant’s request for sanctions is denied as it has not requested sanctions in the notice of opposition. CCP section 2023.040 states: A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought. (CCP section 2023.040.)

Conclusion

Accordingly, Plaintiff’s motion for a protective order is DENIED. Both parties’ request for sanctions is DENIED.

Moving party is ordered to give notice.