Judge Stephen P. Pfahler, Case Number: 22STCV10586, Date: 2024-03-08 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 22STCV10586, Date: 2024-03-08 Tentative Ruling

Case Number: 22STCV10586 Hearing Date: March 20, 2024 Dept: 68

Dept. 68

Date: 3-20-24

Case # 22STCV10568

Trial Date: 5-28-24

QUASH/PROTECTIVE ORDER

MOVING PARTY: Plaintiff, Henghame Abaghi

RESPONDING PARTY: efendant, State Farm Mutual Automobile Insurance Company

RELIEF REQUESTED

Motion to Quash/Protective Order on Deposition Subpoena for Attorney Jeffrey Nodd

SUMMARY OF ACTION

On February 23, 2021, the home of plaintiff Henghame Abaghi located at 23910 Stagg St., West Hills, suffered damage as a result of a “pressurized water supply line located under the concrete slab of a downstairs bedroom” apparently ruptured. Plaintiff submitted an insurance claim on the homeowner policy with defendant State Farm Mutual Automobile Insurance Company. On April 3, 2021, the claim was denied. Plaintiff alleges defendant failed to adequately investigate the cause of the leak, and therefore improperly denied coverage under the terms of the policy.

On March 28, 2022, Plaintiff filed a complaint for Breach of Duty of Good Faith and Fair Dealing, and Breach of Contract. Defendant answered the complaint on May 13, 2022. On December 20, 2023, the court granted Defendant’s motion to bifurcate trial into the first phase for liability, and the second part for the punitive damages claim.

RULING: Granted.

Plaintiff Henghame Abaghi moves to quash or alternatively a protective order on the deposition subpoena seeking the deposition of Plaintiff’s attorney Jeffrey Nodd. Plaintiff moves on grounds that the deposition improperly seeks work product and attorney client privileged information. Plaintiff also maintains the deposition presents an overbroad request, but counsel remains willing to offer testimony into the “Brandt fees” sought in the instant action.

State Farm in opposition initially challenges the motion on grounds that Plaintiff never served a written objection to the deposition and the motion is premature, and Plaintiff can still produce non-privileged information and object at the deposition. State Farm also challenges the merger of two remedies—a motion to quash and protective order. State Farm maintains attorney Nodd became a material witness, due to identification of Nodd in response to Special Interrogatories numbers 8, 17, and 26 regarding persons with knowledge of facts regarding the action, thereby compelling an appearance. State Farm also cites to correspondence by attorney Nodd with State Farm regarding the underlying claim, and relied upon in opposition to the motion for summary judgment. Finally, State Farm contends it is entitled to conduct discovery on the Brandt fees request.

Plaintiff in reply denies any procedural defects, maintains the motion is timely; the motion can be concurrently considered as a both a protective order and motion to quash; and, challenges any showing of good cause to take the deposition except as to Brandt fees though qualifies it with a later argument for alternative means to obtain the information via written discovery.

“If a subpoena requires the attendance of a witness … the court, upon motion reasonably made by any person described in subdivision (b), … may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands…” (Code Civ. Proc., § 1987.1, subd. (a).) A Court may make any order that justice requires to protect a party from “unwanted annoyance, embarrassment or oppression or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) A deponent may seek that the deposition is not taken at all, the deposition only taken on specified terms and conditions, or only certain matters are allowed for inquiry. (Code Civ. Proc., § 2025.420, subd. (b)(1)(5)(9).) 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.4^th 245, 255.) A motion for a protective order “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).) “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.)

The motion contains a sufficient meet and confer effort. [Declaration of Jeffrey Nodd, Ex. B-C.] The motion lacks formal written objection, though Nodd maintains “objections” were incorporated into the meet and confer. (Code Civ. Proc., § 2024.410, subd. (a-b).) The “objections” lack particular specificity other than a general argument against the deposition as presented in the subject motion. Neither part addresses the standard for formal objections, and the court finds denial of the motion on the basis of such a technicality elevates form over substance. The court therefore finds the “objections” sufficient. Even if not properly formatted, however, attorney Nodd only waives any irregularities in the notice. Nothing in the lack of formal objections precludes consideration of the protective order or constitutes a waiver of any privileges.

The court also finds the motion is neither improperly conflated, nor premature. Nodd should not be required to appear at the deposition and then object, given the standard for attorney depositions. Public policy discourages attorney depositions due to attorney client and work product privileged. (Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1494.) “The circumstances under which opposing counsel may be deposed are limited to those where (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and not privileged; (3) the information is crucial to the preparation of the case.” (Id. at p. 1496; Estate of Ruchti (1993) 12 Cal.App.4th 1593, 1602.) “Each of these prongs poses an independent hurdle to deposing an adversary's counsel; any one of them may be sufficient to defeat the attempted attorney deposition.” (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1563.)

In bringing the subject motion, the challenging attorney must first establish the applicability of the attorney client privilege. (Ibid.) “The party claiming privilege has the burden of establishing the preliminary fact that the communications were made during the course of an attorney-client relationship.” (Seahaus La Jolla Owners Association v. Superior Court (2014) 224 Cal.App.4th 754, 766.)

“The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 734.) The transmission of information between third parties and counsel also maintain attorney client privilege protection, if the communication is in further interest of the client. (Evid. Code, § 952.) “Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th at p. 733.)

The work product privilege applies where the sought after documents contains Defendant’s “impressions, conclusions, opinions or legal research or theories,” the information is protected by the work product doctrine. (Code Civ. Proc., § 2018.030(c).) “An objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts”].) (Coito v. Superior Court (2012) 54 Cal.4th 480, 502.) Notes, statements, and impressions of the case are protected by the work product doctrine. A list of potential witnesses is not work product. (Coito v. Superior Court (2012) 54 Cal.4th 480, 495; Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217–218.)

Plaintiff sufficiently establishes of attorney client privilege based on the undisputed existence of Nodd as counsel for Plaintiff in the subject action. The court also finds the work product privilege objection valid. Nothing in State Farm’s argument supports a finding that any and all sought-after documents were generated prior to the anticipation of ligation. The court finds no compelling basis for the deposition simply based on the responses to three special interrogatories generally identifying counsel. Specifically, State Farm presents no showing of the inability to obtain the sought information except and entirely through the deposition of counsel. The court also already rules on the motion for summary judgment/summary adjudication, thereby precluding any basis to compel on this position. With that being said, however, plaintiff’s counsel did identify himself as having knowledge of the facts, so plaintiff’s counsel should not be able to object to having his deposition taken and then subsequently testify in the case as to the facts of the case.

The court also agrees the demand for a general appearance on any and all issues involving representations constitutes an overly broad area inquiry without a sufficient basis for such discovery. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224–225.) “When discovery requests are grossly overbroad on their face, and hence do not appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and improperly burden. When a judge evaluates such factors to determine whether a party has acted reasonably and in good faith in attempting informal resolution, a factual component of decision, derived from the trial judge's knowledge of the case, is inevitably involved.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

Counsel however agrees to provide information in support of the Brandt fees request, which constitutes proper subject matter. (Brandt v. Superior Court (1985) 37 Cal.3d 813.) While Plaintiff initially offered to appear for deposition, Plaintiff in reply now maintains written discovery responses remain sufficient. The court declines to consider new argument submitted in the reply regarding the necessity of the deposition on Brandt fees given the initial offer to appear for deposition. The motion to quash the entire subpoena is therefore denied. The motion for protective order is granted limiting inquiry into the basis for Brandt fees.

The parties may elect to begin with written discovery on Brandt fees in lieu of the deposition. IF the parties still elect to proceed with the deposition, the parties are ordered to meet and confer regarding a deposition strictly limited to non-privileged Brandt fees information. The parties may select the time and method, which can include document production only, and/or testimony. The meet and confer shall occur within 10 days of the order with any production or deposition completed within 30 days of the order. Excessive objections, intentional questions into knowingly privileged areas, and/or other reasons leading to the presentation of a motion to compel further deposition to the court, including an ex parte motion for special setting, may lead to the setting of an OSC re: Appointment of a Referee for a Supervised Deposition of Attorney.

Trial remains set for May 28, 2024.

Plaintiff to give notice.