Judge: Stephen P. Pfahler, Case: 20STCV19456, Date: 2023-01-31 Tentative Ruling

Case Number: 20STCV19456    Hearing Date: January 31, 2023    Dept: F49

Dept. F-49

Date: 1-31-23

Case #20STCV19456

Trial Date: Not Set

FURTHER DEPOSITION

MOVING PARTY: Plaintiff, Pablo Padron

RESPONDING PARTY: Hugo Osoy

RELIEF REQUESTED

Motion to Compel Further Deposition Testimony

SUMMARY OF ACTION

Plaintiff Pablo Padron alleges performing construction remodeling work at 13755 Merchant Ave., Sylmar, when he fell off a ladder and sustained injuries. Plaintiff was working at the direction of defendant Hugo Osoy, and alleges Osoy failed to maintain a workers’ compensation policy at the time of the incident.

On May 21, 2020, Plaintiff filed a complaint for breach of statutory obligation, negligence, and premises liability. Defendants answered the complaint on August 19, 2020. On December 30, 2022, the action was reassigned to Department 49.

RULING: Granted.         

Plaintiff Pablo Padron moves to compel further deposition responses to certain questions regarding property ownership and attorney client communications.

If a deponent fails to answer any question … the party seeking discovery may move the court for an order compelling that answer…” (Code Civ. Proc., § 2025.480, subd. (a).) A party may also move for production of documents. (Ibid.) A motion to compel answers to a deposition must be filed within 60 days of the completion of the “deposition record,” and accompanied by a meet and confer letter. (Code Civ. Proc., § 2025.480, subds. (a-b).) The deposition sessions occurred on July 28, 2022 and September 21, 2022. [Declaration of Tom Veranous, Ex. 1-3.] Sixty days from the second deposition date, as noted by Plaintiff, is November 20, 2022. The motion was previously filed in the Personal Injury Hub Court on November 18, 2022, and re-filed following the transfer on January 6, 2023. The court accepts the motion as timely, since the instant motion only constitutes a reset hearing, rather than new relief and potential waiver. The court also finds the motion supported by a meet and confer effort. [Veranous Decl., Ex. 4-5.]

Deposition testimony time is limited to seven hours, unless the court allows additional time. (Code Civ. Proc., § 2025.290.) The first session is represented as two hours. It’s not clear how long the second session lasted. [Veranous Decl.] Defendant otherwise raises no objection to the time limit.

During the second session, Plaintiff inquired into two areas, which drew objections and an instruction not to answer: An inquiry into other real property interests other than the home where the incident occurred, and whether defendant consulted with a bankruptcy attorney within two years of the deposition. Defense counsel objected on grounds of privacy on the property questions, and “argumentative, relevance, and harassing,” on the attorney consultation question.

While counsel can instruct the client to not answer questions seeking privileged information, Plaintiff cannot refuse to answer a question on grounds form of question or relevance. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013-1014.) Defendant may stop a deposition on grounds of harassment, but Defendant presents no evidence of any subsequent effort to obtain a protective order. (Id. at p. 1015.)

Plaintiff relies on a finding of the lack of any privacy interest, since property records are a matter of public record. Even assuming a privacy right, Plaintiff preemptively contends the nature of the action precludes any “tangential” privacy right. Finally, plaintiff contends information on the homeownership constitutes a compelling interest in that it goes to determining Defendant’s experience as a property developer and contractor. On the relevance argument, Plaintiff contends the inquiry as to whether Defendant consulted a bankruptcy attorney addresses potential impacts to the satisfaction of any judgment.

Defendant in opposition characterizes the homeownership information as financial information, and therefore private, with existing less intrusive means of gather the information available. Defendant contends the purpose of the questioning in the bigger context is to determine potential satisfaction of any judgment, which is beyond the scope of permissible discovery in the instant action. A privacy right cannot be waived, and still requires proof of a compelling interest.

Plaintiff in reply challenges the privacy objection. Property title is public record, and Plaintiff otherwise denies seeking any “private financial information.” Plaintiff denies any less intrusive means available. Plaintiff also maintains the relevance of the potential bankruptcy attorney consult for purposes of determining settlement viability.

“But ‘[f]or discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement….” [Citation.] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases. [Citation.]’ (Citations.)” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653–654.)

The objecting party has the burden to file evidence of the preliminary facts establishing a privilege exists. (HLC Properties, Limited v. Sup. Ct. (2005) 35 Cal.4th 54, 59.) Defendant objects on grounds of financial privacy. “[I]ndividuals have a legally recognized privacy interest in their personal financial information.” (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal.4th 319, 330.) There must be a compelling and opposing state interest justifying the discovery.  (Britt v. Superior Court (1978) 20 Cal.3d 844, 855.)

“Privacy interests generally fall into one of two categories: (1) an interest in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’); and (2) an interest in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’).” (Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1301.)  

“A threatened invasion of privacy can, to be sure, be extremely grave, and to the extent it is, to conclude in a given case that only a compelling countervailing interest and an absence of alternatives will suffice to justify the intrusion may be right. (Citation.) But the flaw in the Court of Appeal's legal analysis, and in the cases it relied upon, is the de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information. Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires. What suffices to justify an invasion will … vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. (Citation.).”

(Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

To the extent the inquiry only seeks publically available information regarding ownership in the Glen Oaks property, information presumably available through a title search, the court finds no basis of an established privacy interest. The information is neither autonomous, nor seeks actual financial information relative to the property itself (e.g. non-public mortgage or lien information.) Prior ownership in other unspecified properties is also subject to public title search information, and therefore not privacy protected to the extent the question only seeks title information. Defendant presented no objection on equally available, or argument as to whether such an argument would justify a non-answer instruction. The court therefore finds the two exact questions as presented answerable, with the reservation that any further inquiry may in fact justify (a) privacy objection(s). In other words, potential privacy objections from additional questions into areas such as financial positions in the property(ies) may in fact justify said objections.

The court otherwise declines to engage in hypotheticals, and instead remarks on this as a form of guidance. To the extent Plaintiff seeks potentially financially protected information, the court reminds Plaintiff of the need to meet the compelling interest standard beyond an argument simply based on the explanation that prior property ownership somehow constitutes a compelling level of interest in that it reflects on potential experience in property redevelopment.

As for the bankruptcy attorney consultation, Defendant provided no privacy objection (or any other privilege objection), and the court otherwise finds no support for the relevance objection. Again the mere inquiry into whether Plaintiff potentially consulted with an attorney seeks relevant information regarding concerns over items like the availability of potential insurance coverage, as allowed in discovery. Again, however, any questions regarding the content of the conversations may both trigger an attorney client objection, or even tangentially a financial privilege objection.

The court therefore grants the motion on the ability to compel an answer to the three asked questions, but otherwise denies any further proactive open-ended leave to explore and delve deeper into the areas of question. Defendant may assert any and all privacy objections upon any inquiry beyond the three articulated questions subject to the motion.

The court otherwise finds no basis limiting the next deposition session. As addressed above, the court cannot determine the total time spent on the deposition, and finds no indication of a potential to exceed the seven-hour limit at this time. The parties may even in fact agree to allow the answering of the questions in writing. The court allows the parties to determine the preferred means to comply with the order, and to monitor any potential time limitations.

Further disputes from the second session and a return to the court, may lead to the referral to a discovery referee for a supervised deposition, with the intention of vesting the referee with the authority to answer any and all inquiries at the time of the deposition. Meanwhile, the court orders the parties to mutually agree to a third deposition date within the next 30 days, with completion of the deposition no later than 45 days of this order.

Sanctions are mandatory unless the court finds justified action. (Code Civ. Proc., § 2025.480, subd. (j).) The court declines to impose sanctions given the valid arguments presented by both parties..

Motion to Compel Further Responses set for March 13, 2023.

Plaintiff to provide notice.