Judge: Stephen I. Goorvitch, Case: 22STCV13023, Date: 2023-09-25 Tentative Ruling

Case Number: 22STCV13023    Hearing Date: March 13, 2024    Dept: 39

Kenneth Oleesky v. Lithia Motors, Inc., et al.

Case No. 22STCV13023

Order #1 of 2

Order Appointing Discovery Referee to Preside Over Deposition

            Plaintiff Kenneth Oleesky (“Plaintiff”) filed this employment action against Defendants Lithia Motors, Inc. (“Lithia”) and Van Nuys-L (“Defendant”).  Previously, Plaintiff Kenneth Oleesky (“Plaintiff”) moved to compel the person most knowledgeable (“PMK”) for Defendant Van Nuys-L (“Defendant”), Diana Rusnick, to answer certain deposition questions after Defendant’s counsel directed her not to answer.  Plaintiff moved for a protective order governing future depositions.  Finally, Plaintiff’s counsel sought monetary sanctions in the amount of $13,736 against Defendant and/or its counsel of record, Shirley Wang, Esq. of the Saber Law Group.

            The Court granted Plaintiff’s motions and ordered as follows: (1) The PMK for Van Nuys-L on Topic Numbers 3, 4, and 8-24 shall sit for another deposition that shall last eight hours or less (not including breaks); (2) This deposition shall not be limited to those questions that the witness refused to answer; (3)  Plaintiff’s counsel may ask any questions, even if they were answered during the prior deposition; and (4) The deposition shall be taken in-person unless the parties stipulate to a remote appearance.  In other words, Plaintiff’s counsel is entitled to a “re-do” of this deposition based upon Defendant’s counsel’s conduct during the prior deposition. 

The Court issued an Order to Show Cause why the Court should not appoint a discovery referee under Code of Civil Procedure section 639 to preside over the deposition of Van Nuys-L’s PMK, supervise the parties’ conduct, and make appropriate findings and recommendations on necessary rulings, including whether a question falls within the scope of a PMK designation and whether objections shall be sustained or overruled (though the PMK is required to answer all questions, even if the discovery referee sustains the objection).  The Court incorporates its order of February 20, 2024, by reference.  The Court deferred a ruling on the issue of sanctions. 

            Neither party objects to the appointment of a discovery referee to preside over the deposition of Van Nuys-L’s person most knowledgeable.  Therefore, the Court appoints a discovery referee for that purpose only.  The Court declines to appoint a discovery referee for other depositions or motions at this point, but the Court will revisit this issue as necessary.

            During the prior hearing, Defendant’s counsel requested that the Court authorize a remote deposition.  The Court declines to do so.  None of this would have been necessary but for Defendant’s counsel’s conduct.  The Court orders that the deposition shall occur in Los Angeles, California unless the parties stipulate otherwise per Code of Civil Procedure section 2025.250(d), as well as the Court’s inherent authority to control discovery.  The record suggests that Van Nuys-L’s principal business office is in Medford, Oregon.  (See Declaration of Diana Rusnick, ¶¶ 3-4.)  The Court will reconsider this order if Defendant provides evidence that Van Nuys-L’s principal business office is such that another location would be required under section 2025.250. 

            Based upon the foregoing, the Court orders as follows:

            1.         The Court orders that the deposition of Van Nuys-L’s PMK shall be conducted live in Los Angeles, California unless the parties stipulate otherwise. 

            2.         The Court orders that a discovery referee shall preside over the deposition and make appropriate findings and recommendations on necessary rulings, including whether a question falls within the scope of a PMK designation and whether objections shall be sustained or overruled (though the PMK is required to answer all questions, even if the discovery referee sustains the objection).  The discovery referee’s work shall be limited to presiding over this deposition. 

            3.         Because the deposition will occur in Los Angeles, California, the Court considers the parties’ three proposed discovery referees in Los Angeles.  The Court appoints the Honorable Jacqueline A. Connor because her hourly billing rate of $1,200 is the lowest among the three discovery referees in Los Angeles (in consideration of Judge White’s initial case management fee, which does not appear to be necessary for such a limited engagement).  The Court knows Judge Connor only by reputation, never having met or spoken with her.  The Court authorizes only 18 hours to prepare for and preside over the deposition, given that this is a straightforward issue. 

            4.         If Judge Connor declines the case, or the parties stipulate to a different referee, the parties shall alert the Court by filing a stipulation and proposed order or ex parte application with at least three days’ notice. 

5.         For the reasons discussed in the Court’s order of February 20, 2024, the Court finds that Van Nuys-L and its counsel have abused the discovery process, warranting sanctions.  However, instead of ordering Van Nuys-L and its counsel to pay these sanctions and then splitting the cost of the discovery referee among the parties, the Court simply will order Van Nuys-L to pay the cost of the discovery referee, since its attorney’s conduct necessitated the referee.   

6.         The parties shall meet-and-confer and schedule the deposition forthwith. 

            7.         Plaintiff’s counsel shall provide notice and file proof of such with the Court.   

Order #2 of 2

Defendants’ Motion to Quash

            Defendants move to quash two subpoenas that Plaintiff served on Keyes Motors, Inc. (“Keyes”) and Toyota Motor Sales U.S.A., Inc. (“Toyota”) (collectively, the “deponents”).  The motions were served on the deponents through counsel via email, and the Court assumes that the deponents agreed to this method of service for purposes of California Rules of Court, rule 3.1346. 

If a subpoena requires the production of documents, the Court may quash the subpoena entirely or modify it.  (Code Civ. Proc., § 1987.1, subd. (a).)  In ruling on a motion to quash, “the Court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”  (Code Civ. Proc., § 1987.2, subd. (a).)

            Plaintiff seeks all dealership agreements, franchise agreements, and master framework agreements between Toyota and Defendants.  Defendants contend these subpoenas are overbroad.  They are not.  Plaintiff contends Defendants jointly employed Plaintiff.  As such, Plaintiff is entitled to investigate the structure of Defendants vis-à-vis Toyota.  An employer is “any person . . . who directly or indirectly, employs or exercises control over the wages, hours or working conditions of any person[,]” or a person who “engage[s], suffer[s], or permit[s] [another person] to work[.]”  It also includes any person who exercises control over the wages, hours or working conditions of employees.  (Cal. Code Regs., tit. 8, § 11140(2)(C)-(F).)  Per Martinez v. Combs (2010) 49 Cal.4th 35, an employer is “a person who ‘employs or exercises control over the wages, hours, or working conditions of any person[,]’” and this “definition logically incorporates the separate definition of ‘employ’ (i.e., ‘to engage, suffer, or permit to work’) as one alternative.”  (Martinez v. Combs (2010) 49 Cal.4th 35, 59.)  The nature of the relationship between Toyota and Defendants is therefore directly relevant to the issue of whether Defendants jointly employed Plaintiff.  Plaintiff is entitled to investigate the extent to which each Defendant  operated independently of Toyota and each other to determine if both Defendants exercised control over Plaintiff’s employment.  Plaintiff is entitled to this discovery.

Defendants argue that the subpoena violates Defendants’ rights to privacy.  As corporations, Defendants do not have a right to privacy under the California Constitution.  (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755.)  Regardless, the Court must order the disclosure of private information if the information is directly relevant to the litigation.  (See Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856.)  The requested information is directly relevant to this litigation. 

Defendants argue that Plaintiff could obtain this information directly from Defendants, which would be less intrusive on the deponents.  There are two problems with this argument.  First, Defendants’ counsel do not represent the deponents; it is incumbent upon the deponents to raise this issue.  Second, Plaintiff’s counsel is not required to rely on Defendants.  Sometimes, discovery from third parties is more reliable and forthcoming. 

The subpoena Plaintiff served on Keyes seeks documents regarding the acquisition of the dealership where Plaintiff worked by Defendants from Keyes.  Again, the nature of the relationship between Defendants is directly relevant to the issue of whether Defendants jointly employed Plaintiff. 

Based upon the foregoing, Defendants’ motions to quash are denied.  The deponents shall comply with the subpoenas within twenty (20) days.  Plaintiff’s counsel shall provide notice and file proof of such with the Court.