Judge Stephen P. Pfahler, Case Number: 24STCP02942, Date: 2024-10-16 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 24STCP02942, Date: 2024-10-16 Tentative Ruling

Case Number: 24STCP02942 Hearing Date: October 16, 2024 Dept: 68

Dept. 68

Date: 10-16-24 (specially set via 9-24-24 ex parte order)

Case # 24STCP02942

Trial Dates: N/A

DISMISS PETITION QUASH/PROTECTIVE ORDER

MOVING PARTY: Respondents, Ilona Klar, et al.

RESPONDING PARTY: Petitioner, American International Industries

RELIEF REQUESTED

Motion to Dismiss the Petition to Quash or Alternatively a Protective Order on a Deposition Subpoena

SUMMARY OF ACTION

On September 12, 2024, American International Industries filed a petition for protective order and to quash deposition subpoena in action pending outside of California. The petition involves deponent Jerry Allyn Whittemore, designated corporate representative of The Neslemur Company, predecessor of A-I-I for Clubman Talc. Whittemore resides in Los Angeles.

Petitioner represents Plaintiffs’ counsel improperly made personal contact with Whittemore despite Whittemore being represented by counsel for The Neslemur Company. The contact resulted in the creation of an affidavit without the consent of The Neslemur Company to issue such a statement on behalf of the company.

Respondent now seeks to take the deposition testimony of Whittemore. The subject action involves an asbestos contaminated cosmetic talc action currently pending in New Jersey.

Petitioner moves to quash the subpoena and prohibit the deposition; issuance of a protective order prohibiting further ex parte communication within Whittemore; identification of all persons an affidavit was shared with and in contact with attorney Simmons; destruction of said affidavit; and the affidavit be deemed void and stricken.

RULING: Denied.

Respondents Ilona Klar and Ronald Glaser move to dismiss the petition for protective order and to quash the deposition subpoena regarding the deposition of The Neslemur Company designated corporate representative, Jerry Allyn Whittemore, in Los Angeles. On September 24, 2024, the court granted the ex parte application of Respondent to set the subject hearing. The motion comes before the setting of any hearing date on the petition itself.

The motion is based on claimed dilatory conduct in bringing the subject petition, and challenge to the right to take the deposition of Whittemore as an individual, rather than as a corporate representative of The Neslemur Company. Respondents maintain contact was only made directly prior to any identified representation of counsel. The affidavit was voluntarily prepared and executed by Whittemore. Petitioner in opposition contends the motion is procedurally defective in that Respondents should have filed an opposition to the motion rather than a separate motion to dismiss. The motion itself relies on improper extrinsic evidence. Petitioner maintains the petition was timely filed. Petitioner denies any impropriety in bringing the petition and intends to challenge use of the affidavit. Petitioner maintains Whittemore appears as a corporate representative of The Neslemur Company. Direct contact with the witness violated New Jersey and California rules of professional conduct. Respondents in reply maintain the motion is procedurally proper, the petition lacks authority or admissible evidence for the requested relief, the petition is untimely, and the subpoena is justified.

The court addresses the first issue: the basis for dismissal of the petition itself. Respondent offers statutory authority regarding discovery, including Code of Civil Procedure sections 128, 1005, 1987.1, 2020.010, 2025.410, 2025.420, and 2029.500, but no actual address for the basis of the dismissal of the entire petition itself.

Dismissals of special civil proceedings appear governed at least in part by Code of Civil Procedure section 583.120, subd. (b): “[T]he court may, by rule or otherwise under inherent authority of the court, apply this chapter to a special proceeding or part of a special proceeding except to the extent such application would be inconsistent with the character of the special proceeding or the statute governing the special proceeding.” “In general, even without express statutory authority, a trial court has certain inherent discretionary powers to dismiss claims. (Citation.) However, these grounds are typically limited to lack of jurisdiction, forum non conveniens, absence of a justiciable controversy, plaintiff's failure to give security for costs, failure to appeal at trial, or failure to amend the complaint.” (Conservatorship of Kayle (2005) 134 Cal.App.4th 1, 8.)

Respondents motion constitutes a preemptive challenge to the petition itself. Rather than compelling Petitioner to set the hearing, Respondent seeks to effectively strike a motion to quash or alternative request for protective order. The court finds no basis of procedural authority to “strike” an effective motion filed by another party, compared to simply opposing the motion itself. The court therefore finds no equivalent or analogous basis for the outright dismissal of the subject petition simply based on impatience with the process.

While an argument can be made for consideration of the merits of the petition itself and all of the extensively requested relief, the burden falls on petitioner to make the showing. The court declines to force Petitioner to defend the petition in response to a preemptive challenge. Even if the court considered the motion, the motion itself lacks address of each and every articulated claim for relief, and instead only seeks to distinguish the propriety of making contact with the witness and the execution of the affidavit. To the extent the petition remains without any order as to the conduct of the parties, nothing prevents Respondents from continuing on their course of conduct in discovery thereby putting any burden challenging admission to the evidence on Petitioner before the New Jersey trial court.

The court therefore DENIES the motion to dismiss the petition on grounds of lack of a showing for relief. The motion lacks both a showing of procedural and substantive authority for an order granting all requested relief allowing a determination of a legally invalid petition.

Even considering some of the argument, however, the court finds the petition timely filed. Respondents reference a failure to submit objections within three calendar days of the deposition. Other than a reference to an August 22, 2024, change to start time, the court cannot determine the actual date of the deposition simply based on an indication of an agreement for a later date. Petitioner maintains the petition was only prompted after disclosure of the existence of the affidavit, and the petition was filed within 24 hours. The admitted delay on the deposition appears to render any determination of dilatory conduct unnecessary. Alternatively, if the deposition occurred for whatever reason, a determination of untimeliness would alternatively be moot on this particular item.

As for justification of the petition to quash, Petitioner still seeks to challenge use of the witness affidavit. The court finds nothing invalid in this claim for relief, though, again, admission of the document appears to remain an issue for the New Jersey trial court.

As for whether Whittemore appears on behalf of The Neslemur Company or as a voluntary individual witness, the motion and reply lacks any address of this potential situation. The court declines to make the argument for Respondent. The court also refrains from considering any potential ethical rule violations given the uncertainty as to the status of Whittemore to appear for deposition in an individual capacity separate and apart from a PMQ/PMK designation. (See Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398.)

The motion to dismiss the petition is therefore DENIED on this basis as well.

Respondents to give notice.