Judge: Steven A. Ellis, Case: 22STCV31603, Date: 2024-03-22 Tentative Ruling
Case Number: 22STCV31603 Hearing Date: April 12, 2024 Dept: 29
Motion for Protective Order filed by Plaintiff
Motion to Compel Compliance with Deposition Subpoena filed by Defendant Numark
Transportation, Inc.
Tentative
The motion to compel is granted in part and
denied in part.
The motion for a protective order is granted
in part and denied in part.
Background
On September 27,
2022, Angel Contreras (“Plaintiff”) filed the complaint in this action against
Mario Lua, Numark Transportation, Inc. (“Numark”), and Does 1 through 25,
asserting causes of action for motor vehicle negligence and general negligence
arising out of an accident occurring on February 17, 2022, on the 710 Freeway
near Washington Boulevard in Commerce.
At the time of filing, Plaintiff was represented by counsel of record
Jennie Levin.
On April 20,
2023, Plaintiff filed a substitution of counsel, with David R. Lira replacing
Jennie Levin.
Defendants Numark
and Mario Lua (collectively, “Defendants”) filed their answers on July 21,
2023, and January 16, 2024.
On November 28,
2023, Numark noticed the deposition of Plaintiff’s former counsel of record
Jennie Levin. (Mathis Decl., ¶ 6.) Numark asserts that it seeks to take the
deposition of Ms. Levin because she, on behalf of Plaintiff, entered into an
oral settlement agreement with Defendants in October 2022, shortly after the
complaint was filed. (Id., ¶ 2.)
On February 21,
2024, Plaintiff filed a motion for a protective order to preclude Numark from
taking the deposition of Ms. Levin. Plaintiff
also seeks sanctions. The hearing on
that motion was initially set for April 29, 2024.
On February 29,
2024, Numark filed this motion to compel the deposition of Ms. Levin. Numark also seeks sanctions. The hearing on the motion was initially set
for March 22, 2024, and was then continued to March 26. Plaintiff
filed an opposition on March 11, and Numark filed a reply on March 15.
On March 26, Numark’s motion to compel came
on for hearing. After discussing the
matter with counsel, the Court continued the hearing to April 12; advanced and
continued the hearing on Plaintiff’s motion for a protective order to April 12;
and ruled that Numark’s moving papers on its motion to compel would be treated
as its opposition to Plaintiff’s motion for a protective order.
Legal Standard
“Any party may
obtain discovery … by taking in California the oral deposition of any person,
including any party to the action.”
(Code Civ. Proc., § 2025.010.)
The process by which a party may obtain discovery from a
person who is not a party to the action is through a deposition subpoena. (Code Civ. Proc., § 2020.010, subd.
(b).) Personal service of the deposition
subpoena on the non-party is required.
(Code Civ. Proc., § 2020.220, subd. (b).)
“A deposition subpoena may command any of the following: (a) Only
the attendance and testimony of the deponent …. (b) Only the production of
business records for copying …. (c) The attendance and the testimony of
the deponent, as well as the production of business records, other documents,
electronically stored information, and tangible things.” (Code Civ. Proc.,
§ 2020.020.)
“If a deponent on whom a deposition subpoena has been served fails
to attend a deposition or refuses to be sworn as a witness, the court may
impose on the deponent the sanctions described in Section 2020.240 [contempt
and an action for civil damages under section 1992].” (Code Civ. Proc., §
2025.440, subd. (b).)
“If a deponent fails to answer any question or to produce any
document, electronically stored information, or tangible thing under the
deponent’s control that is specified in the deposition notice or a deposition
subpoena, the party seeking discovery may move the court for an order
compelling that answer or production.” (Code Civ. Proc., § 2025.480,
subd. (a).) “This motion shall be made no later than 60 days after
the completion of the record of the deposition, and shall be accompanied by a
meet and confer declaration under Section 2016.040.” (Id., subd. (b).)
“If the
court determines that the answer or production sought is subject to discovery,
it shall order that the answer be given or the production be made on the
resumption of the deposition. (Id., subd. (i).)
“[T]he court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel an answer or production,
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.” (Id., subd. (j).)
In Chapter 7 of the Civil
Discovery Act, section 2023.010, subdivision (d), defines “[m]isuses of the
discovery process” to include “[f]ailing to respond to or to submit to an
authorized method of discovery.” Where a
party or attorney has engaged in misuse of the discovery process, the court may
impose a monetary sanction in the amount of “the reasonable expenses, including
attorney’s fees, incurred by anyone as a result of that conduct.” (Id., § 2023.030, subd. (a).)
Except as specifically modified by the
Civil Discovery Act, the provisions of Code of Civil Procedure sections 1985
through 1997 apply to deposition subpoenas.
(Code Civ. Proc., § 2020.030.)¿
Code of
Civil Procedure section 1987.1, subdivision (a), provides: “If a subpoena
requires the attendance of a witness or the production of books, documents, or
other things before a court, or at the trial of an issue therein, or at the
taking of a deposition, the court, upon motion reasonably made by any person
described in subdivision (b), or upon the court’s own motion after giving
counsel notice and an opportunity to be heard, 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, including unreasonable
violations of the right of privacy of the person.”
Code of Civil Procedure section 1987.2,
subdivision (a), states, in relevant part, that in connection with an order
directing compliance with a subpoena, quashing it, or modifying it, “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.”¿
A motion to compel a nonparty to answer
questions or produce documents “must be personally served on the nonparty
deponent unless the nonparty deponent agrees to accept service by mail or
electronic service.” (Cal. R. Ct., rule
3.1346.)
“The court shall limit the scope of discovery
if it determines that the burden, expense, or intrusiveness of that discovery
clearly outweighs the likelihood that the information sought will lead to the
discovery of admissible evidence. The
court may make this determination pursuant to a motion for protective order by
a party or other affected person. This
motion shall be accompanied by a meet and confer declaration under Section
2016.040.” (Code Civ. Proc., § 2017.020,
subd. (a).)
“Before, during, or after a deposition, any
party, any deponent, or any other affected natural person or organization may
promptly move for a protective order. The
motion shall be accompanied by a meet and confer declaration under Section
2016.040.” (Code Civ. Proc., § 2025.420,
subd. (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.”
(Id., subd. (b).) The
court may order (among other things) that the deposition “not be taken at all”
or that the deposition “be taken only on certain specified terms and conditions.” (Ibid.)
“The court shall impose a monetary sanction
under Chapter 7 (commencing with Section 2023.010) 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.” (Id., subd.
(h).)
Preliminary Issue
As discussed with counsel at the March 26
hearing, the Court has been informed that although Ms. Levin was not personally
served with the deposition subpoena or the motion to compel, Plaintiff’s
current counsel represents her for purposes of the deposition and has accepted
service of the subpoena and the motion on her behalf. (Mathis Decl., ¶ 10 & Exhs. G & I; Lira
Decl., ¶ 1 & Exh. 1.)
The parties have satisfied the applicable
meet and confer requirements.
Discussion
Numark has issued
a deposition subpoena to Plaintiff’s former counsel Ms. Levin, seeking to
obtain both testimony and documents regarding disputed events that occurred (or
did not occur) while Ms. Levin was representing Plaintiff. Numark moves to compel Ms. Levin to comply
with the subpoena. Plaintiff moves for a
protective order to prevent the taking of the deposition at all.
Separate issues
arise with regard to the testimony and the requested document production. Accordingly, these two issues will be
addressed separately.
Testimony
Depositions of counsel are restricted, rarely
permitted, and require a showing of “extremely” good cause. (Carehouse
Convalescent Hospital v. Super. Ct. (2006) 143 Cal.App.4th 1558, 1562.)
Courts generally apply a three-part test
and require the party seeking the deposition to make a sufficient showing in
support of the deposition on all three parts.
“First, does the proponent have other practicable means to obtain the
information? Second, is the information crucial to the preparation of the case?
Third, is the information subject to a privilege?” (Id. at p. 1563,
citing Spectra–Physics, Inc. v. Super. Ct. (1988) 198 Cal.App.3d 1487,
1494.)
This three-part test applies here
notwithstanding Numark’s contention that the subject of Ms. Levin’s testimony
will relate to events that predate service of the complaint. (See Motion to Compel,
12:25-26.) Regardless of the timing of service, Numark seeks to depose Ms.
Levin about events that occurred in connection with this matter, after the
complaint was filed, and while Ms. Levin was representing Plaintiff. This is precisely the type of testimony that
the “extremely” good cause standard and the three-part test are designed to
protect against. “Counsel should be free
to devote his or her time and efforts to preparing the client's case without
fear of being interrogated by his or her opponent.” (Spectra–Physics, supra,
198 Cal.App.3d at p. 1494.)
First, in part one of the test, the Court finds that Numark
has shown that the information cannot be obtained through alternate means. Plaintiff has already been deposed and has
denied that he agreed to or approved any settlement. It is Numark’s contention that Ms. Levin made
statements or representations that are sufficient to establish that the parties
entered into a settlement agreement in October 2022 that is binding and
enforceable against Plaintiff. Of
course, the Court does not know at this point what Ms. Levin will state in her
deposition, but asking Plaintiff again (including, for example, through written
discovery directed to him) is clearly not sufficient.
Second, in part two of the test, the Court finds that Numark
has shown that the information is crucial.
Numark asserts, in its Seventh and Eighth Affirmative Defenses, that the
entire action is barred based on a settlement agreement or promissory
estoppel. This is not a minor or
tangential issue: to the contrary, Ms. Levin’s testimony will go to the core of
a potentially dispositive issue in this litigation.
On a related point, Plaintiff argues that regardless
of what Ms. Levin may or may not say, there was no enforceable settlement
agreement between the parties because the requirements of Code of Civil
Procedure section 664.6 were plainly not met.
(Opp. to Mot. to Compel, at pp. 11-13; Mot. for Prot. Order, at pp. 8-10.)
Section 664.6, however, is only a procedural statute. It provides a mechanism for summary
enforcement of certain types of settlement agreements. It is
possible for parties to have an enforceable settlement agreement that is not
subject to the summary enforcement proceedings of section 664.6 (including, for
example, an enforceable oral agreement to settle). In those circumstances, a party seeking to
enforce the agreement must proceed through other means, such as through an
affirmative defense and/or a motion for summary judgment, rather than through
the summary procedures of section 664.6.
(See generally Weddington Productions v. Flick (1998) 60
Cal.App.4th 793, 809.) Thus, the information that Numark seeks is
critical regardless of whether the statutory requirements of section 664.6 were
satisfied.
Third, in part three of the test, the Court finds that Numark
has shown that at least some of the information that it seeks to obtain through
Ms. Levin’s testimony is not privileged.
For example, Ms. Levin’s discussions with Plaintiff about a potential
settlement or the potential settlement value of the case are almost certainly
protected by the attorney-client privilege; Ms. Levin’s own analysis of the
strength of the case or its settlement value are almost certainly protected by
the work product doctrine; but Ms. Levin’s discussions with Numark or its
representatives about settlement are not covered by the attorney-client
privilege or work product doctrine. To
be sure, such communications might be inadmissible at trial under Evidence Code
section 1154 to prove the validity or invalidity of Plaintiff’s claim, but they
are not inadmissible on the issue of whether the parties reached an enforceable
settlement agreement.
The Court has considered the arguments of
both sides and all of the evidence in the record. The Court concludes that Numark has shown extremely
good cause for the deposition of Ms. Levin and has satisfied the requirements
of the three-part test set forth in the case law. Numark’s motion to compel Ms. Levin to appear
for her deposition and give testimony is GRANTED, and Plaintiff’s motion for a
protective order to prevent the taking of Ms. Levin’s deposition is DENIED.
The Court’s ruling is without prejudice to the
right of Plaintiff and Ms. Levin to object, including on privilege and work
product grounds, to individual questions.
But the privilege and work product issues are not so pervasive as to the
preclude the taking of the deposition entirely.
Numark will be entitled to inquire of Ms. Levin as to matters that are
not privileged or protected by the work product doctrine, including the
communications that she had with representatives of Numark (including its
insurer) regarding what Numark alleges was a settlement agreement in October
2022.
Documents
The most recent version of the deposition
notice is attached to the declaration of Numark’s counsel as Exhibit H and to
the declaration of Plaintiff’s counsel as Exhibit 7. Plaintiff’s objections are in Exhibit 8 to
the declaration of Plaintiff’s counsel.
Numark includes in the deposition notice 14
requests for production. Plaintiff objects
to each and every request on the grounds of attorney-client privilege and work
product protection.
Requests Nos. 1-5
These requests seek documents regarding
communications with Canal Insurance Company, Numark’s insurer, about the
incident or the alleged settlement.
Communications between Plaintiff’s counsel
and Numark’s insurance company are not subject to the attorney-client privilege
or work product protection.
Communications between Plaintiff’s counsel and Plaintiff about counsel’s
communication with the insurer are, however, presumptively privileged.
Accordingly, the Court narrows these requests
as follows: (1) All communications with Canal Insurance about the incident; (2)
All communications with Canal Insurance about any settlement discussions in
this matter; (3) All communication with Canal Insurance about settlement
negotiations in this matter; (4) All documents communicating any settlement
offers made by Canal Insurance Company; and (5) All documents communicating
with Canal Insurance Company about any agreement to accept a settlement offer.
As narrowed, the motion to compel is GRANTED
and the motion for a protective order is DENIED.
Request No. 6
The retainer agreement itself must be
produced (with any privileged material redacted); the fact of the retainer is
not privileged. Communications regarding
the retainer agreement, including negotiations, are presumptively privileged.
Accordingly, the Court narrows this request
as follows: (6) All retainer agreements between you and Plaintiff Angel
Contreras.
Ms. Levin may redact any material that is
privileged or protected by the work product doctrine.
As narrowed, the motion to compel is GRANTED
and the motion for a protective order is DENIED.
Requests Nos. 7-14
These requests, on their face, seek documents
relating to communication between attorney and client. The responsive documents are presumptively privileged.
The motion to compel is DENIED. The motion for a protective order is GRANTED.
Sanctions
The Court finds
that all parties have acted with substantial justification as to these
motions. Plaintiff has acted with
substantial justification in vigorously seeking to protect the full scope of the
attorney-client privilege and work product doctrine, and Numark has acted with
substantial justification in vigorously seeking to obtain all non-privileged
and non-protected evidence in support of its affirmative defenses. These are difficult issues, and under all of
the circumstances it would be unjust to impose sanctions on either party.
Conclusion
The Court GRANTS in PART and DENIES in PART Numark’s
motion to compel.
The Court GRANTS in PART and DENIES in PART Plaintiff’s
motion for a protective order.
The Court ORDERS Ms. Levin to appear for her
deposition and give testimony at a date and time to be arranged by counsel
within 30 days of notice.
The Court STATES that this order does not
preclude counsel for Plaintiff or for Ms. Levin from making appropriate objections
at the deposition, including on the basis of the attorney-client privilege or
work product doctrine, consistent with the terms of this order.
The Court ORDERS Ms. Levin to produce, at or
before her deposition, documents responsive to Document Requests Nos. 1-6, as
narrowed by this order.
The Court DENIES both parties’ requests for
sanctions.
The Court DENIES all other relief requested
by either party.