Judge: Steven A. Ellis, Case: 23STCV02082, Date: 2024-01-03 Tentative Ruling

Case Number: 23STCV02082    Hearing Date: March 21, 2024    Dept: 29

Motion for a Protective Order filed by Defendant City of Los Angeles.

Tentative

The motion is granted in part.

Background

Plaintiff Henry Hernandez (“Plaintiff”) alleges that he sustained severe injuries when the motorcycle he was operating hit a deep and difficult to see pothole in the road on February 26, 2022, on East Washington Boulevard near Industrial Way in Los Angeles, California. 

On January 31, 2023, Plaintiff filed the Complaint in this action asserting causes of action for dangerous condition of public property and premises liability against Defendants City of Los Angeles (“City”) and Does 1 through 50. 

On August 31, 2023, City filed its Answer to the Complaint and a Cross-Complaint against Roes 1 through 10.

On November 17, 2023, City served responses to interrogatories, requests for production, and requests for admission.  (Martinez Decl., ¶ 3.)  These discovery responses were all verified by Deputy City Attorney Robin H. Jung.  (Ibid; see also Jung Decl., ¶ 12 & Exh. 10.)  Each verification states that it is made on information and belief and is “based upon information provided to me by various employees of the City of Los Angeles and others concerned with the subject matter of the within action.”  (Jung Decl., Exh. 10.)  The verification also states that attorney Jung is “an agent of the City of Los Angeles” and is “authorized to verify the foregoing [discovery response] on behalf of the City of Los Angeles.”  (Ibid.)

On December 5, 2023, Plaintiff served a notice of taking the deposition of attorney Jung.  (Jung Decl., ¶ 2 & Exh. 1; Martinez Decl., ¶ 4 & Exh. 1.)  The deposition was scheduled for December 28.  (Ibid.)  City served an objection to the deposition notice.  (Jung Decl., ¶ 3 & Exh. 2; Martinez Decl., ¶ 5 & Exh. 2.)  The parties exchanged meet and confer correspondence but were unable to resolve the dispute.  (Jung Decl., ¶¶ 4-10 & Exhs. 3-9; Martinez Decl., ¶¶ 5-10 & Exhs. 3-9.)

On January 11, 2024, City filed this motion for a protective order, seeking an order that the deposition of Robin Jung not take place.  Plaintiff filed an opposition, and a request for sanctions, on March 8, 2024.  City filed its reply on March 14, 2024.

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.)  Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served. 

“The service of a deposition notice … is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”  (Id., § 2025.280, 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.”  (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. This protective order may include, but is not limited to, one or more of the following directions: (1) That the deposition not be taken at all ….”  (Id., subd. (b).)

“The court shall impose a monetary sanction under Chapter 7 [of the Civil Discovery Act] 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).)

Discussion

City seeks a protective order under Code of Civil procedure section 2025.420, subdivision (b), to prevent keep its attorney Robin Jung from having to appear and testify at a deposition.  City argues (among other things) that because attorney Jung is its counsel of record, the deposition would threaten to invade the attorney-client privilege and work product doctrine. 

As an initial matter, there has been at least some waiver of the attorney-client privilege and work product doctrine.  Under the express terms of the Civil Discovery Act, when a corporate entity or government agency designates an agent to sign a discovery response on its behalf, and the agent “is an attorney acting in that capacity for [the] party, that party waives any lawyer-client privilege and any protection for work product … during any subsequent discovery from that attorney concerning the identity of the sources of the information contained in the response.”  (Code Civ. Proc., § 2030.250, subd. (b) (interrogatories); § 2031.250, subd. (b) (requests for production); 2033.240, subd. (b) (requests for admission).)

Thus, by statute there is no doubt that: (1) Plaintiff may conduct discovery regarding “the identity of the sources of the information contained in the response[s],” and (2) such information is not protected by the attorney-client privilege or work product doctrine.  (E.g., Melendrez v. Super. Ct. (2013) 215 Cal.App.4th 1343, 1351-1352.)

It does not follow, however, that Plaintiff can depose opposing counsel.  “Depositions of opposing counsel are presumptively improper, severely restricted, and require extremely good cause – a high standard.”  (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562.)

California applies a three-prong test in considering the propriety of attorney depositions.  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?  …  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.

(Id. at p. 1563.)  Specifically in the context of an attorney verifying discovery responses, the Court of Appeal has stated, “there is no indication that a deposition of the verifying attorney would ever be necessary in any particular case.”  (Melendrez, supra, 215 Cal.App.4th at pp. 1352-1353.)

Applying these principles here, Plaintiff cannot meet the high standard of “extremely good cause” for the discovery at this time.  Plaintiff certainly has a right to obtain information from City regarding who provided the information to Jung that Jung then used to prepare and verify the discovery responses.  Indeed, obtaining the identity of witnesses with personal knowledge of the facts in dispute is a key function of discovery.  But here, at least at this point, Plaintiff cannot overcome the first “hurdle” set forth in the Carehouse Convalescent Hospital case, as there are other practicable means to obtain that information – including through written discovery and one or more PMQ depositions. 

Accordingly, in these circumstances, the motion for a protective order is granted in part.  At this time, the deposition noticed by Plaintiff of attorney Jung may not proceed.  In the future, Plaintiff may renotice the deposition – but only after Plaintiff has made diligent efforts to obtain the information concerning the identity of the sources of the information contained in the discovery response through other means, and only if those other means are (despite Plaintiff’s diligent efforts) unsuccessful.

City does not request monetary sanctions.  Plaintiff’s request for monetary sanctions is denied as City has not been unsuccessful in making its motion for a protective order.

Conclusion

The Court GRANTS in part Defendant’s motion for a protective order.

The Court ORDERS that attorney Jung need not appear for a deposition based on the notice served on December 5, 2023.

This ruling does not necessarily preclude Plaintiff from renoticing the deposition, but only after Plaintiff has diligently (but unsuccessfully) sought the information concerning the identity of the sources of the information contained in the discovery response through other means.

Moving party is ORDERED to give notice.