Judge: Teresa A. Beaudet, Case: 20STCV19290, Date: 2023-02-07 Tentative Ruling

Case Number: 20STCV19290    Hearing Date: February 7, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Jason Dizon (“Plaintiff”) filed this action against Defendant Western Asset Management Company, LLC (“Defendant”) on May 20, 2020. In the Complaint, Plaintiff asserts causes of action for (1) retaliation in violation of Equal Pay Act, (2) whistleblower retaliation, (3) retaliation in violation of FEHA, (4) retaliation in violation of Cal. Labor Code § 98.6, (5) discrimination on the basis of association with protected group in violation of FEHA, (6) failure to prevent discrimination and/or retaliation in violation of FEHA, (7) wrongful termination in violation of public policy, and (8) unlawful prohibition on discussing wages and working conditions.[1]

On November 23, 2021, Defendant issued a subpoena to non-party Shirin Forootan (“Forootan”) for a deposition on December 15, 2021 (the “Subpoena”). (Morphy Decl., ¶ 2, Ex. A) The Subpoena ordered Forootan to appear for deposition and produce five categories of documents. (Ibid.)

On December 8, 2021, Forootan served written objections to the Subpoena. (Morphy Decl., ¶ 3, Ex. B). Forootan did not appear for her deposition on December 15, 2021. (Morphy Decl., ¶ 4).

Defendant indicates that on March 16, 2022, the parties participated in an Informal Discovery Conference (“IDC”). The Court’s March 16, 2022 minute order provides, inter alia, that “[t]he parties completed the IDC requirement regarding the issues set forth in the IDC statement filed by Ms. Forootan.” It appears the minute order must be corrected nunc pro tunc to refer to Defendant, not Ms. Forootan. On March 9, 2022, Defendant filed an IDC Statement for the March 16, 2022 IDC asserting, inter alia, that “Ms. Forootan has refused to appear for deposition, arguing that her communications are protected work-product because they occurred within the context of Ms. Forootan’s representation of Dizon’s friend and coworker in connection with another lawsuit.”

On March 24, 2022, Defendant and Forootan entered into a “Stipulation and Proposed Order Re Deposition of Non-Party Shirin Forootan.” (Morphy Decl., ¶ 6, Ex. D.) Defendant indicates that on March 29, 2022, Forootan appeared for her deposition (Morphy Decl., ¶ 7). Defendant asserts that Forootan did not produce any of the documents requested in the Subpoena and refused to answer certain questions at the deposition.

On May 19, 2022, the parties participated in another IDC. The Court’s May 19, 2022 minute order provides in pertinent part that “[t]he parties and counsel for third-party witness Forootan participated in an IDC with regard to the issues identified in Defendant Western Asset’s IDC statement dated 5/12/22. Counsel for the parties and the third-party witness will further meet and confer based upon the discussion at the IDC; their IDC requirement has been met.”[2]

Defendant indicates that after the May 19, 2022 IDC, Defendant’s counsel attempted to

meet and confer with Forootan’s counsel regarding the questions that Forootan refused to answer at her deposition. (Morphy Decl., ¶ 11.) Defendant indicates that Forootan’s counsel “offered to allow Ms. Forootan to answer some of the Disputed Questions in writing. But she refused to allow Ms. Forootan to answer all of the Disputed Questions. She also refused to allow Ms. Forootan to appear for a second session deposition to orally answer the Disputed Questions, and any necessary follow-up questions from Defendant. (Morphy Decl., ¶ 11.)

Defendant now moves for an order compelling Forootan “to answer questions that she refused to answer in deposition” and to produce documents requested in the Subpoena. Forootan

opposes.

Discussion

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, electronically stored information, 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.”

“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.” (Code Civ. Proc., § 2025.480, subd. (b).) 

            As an initial matter, Forootan asserts that the instant motion is untimely. As set forth above, under Code of Civil Procedure section 2025.480, subdivision (b), the motion “shall be made no later than 60 days after the completion of the record of the deposition…” Forootan asserts that the record of the deposition was completed no later than April 21, 2022, when all counsel received notice that the transcript was completed and ready for review. Defendant’s counsel’s declaration in support of the motion indicates that “[o]n or about April 21, 2022, the court reporter sent a letter to Forootan, copying my office, informing Forootan that her deposition transcript was ready for review.” (Morphy Decl., ¶ 7.) Forootan indicates that sixty days after April 21, 2022 is June 20, 2022, and the instant motion as filed on July 19, 2022.

            Defendant counters that “[p]ursuant to Code Civ. Proc. § 2025.520(b)[3], Forootan…had 30 days to change the form or the substance of the answer to any question in the deposition or to approve or refuse the transcript. Forootan did not make change any of her transcript or elect to answer the Disputed Question during that time, and the record of the deposition was thus completed 30 days later, on May 21, 2022…Pursuant to Code Civ. Proc. § 2025.520, [Defendant] has until July 20, 2022 to file its motion.” (Mot. at p. 15:26-16:5.)

            Forootan acknowledges in the opposition that “no case has decided whether the deposition record of an oral deposition is complete when the transcript becomes available for review, or when the transcript is approved or deemed approved by the deponent under Cal. Civ. Proc. Code § 2025.520.” (Opp’n at p. 6:16-19.) Forootan asserts that the better interpretation is that the deadline runs from the notice that the transcript is available.

In light of the ambiguity regarding when the “completion of the record of the deposition”

takes place, the Court does not find that Forootan has demonstrated that the instant motion should be denied on the grounds that it is untimely.

            Document Requests

Defendant’s Subpoena to Forootan sought the following categories of documents:

1.     “All DOCUMENTS RELATING TO any conversations between YOU and DIZON during the period of June 2019 to February 13, 2020.”

2.     “All email COMMUNICATIONS between YOU and DIZON during the period of June 2019 to February 13, 2020.”

3.     “All text message COMMUNICATIONS between YOU and DIZON during the period of June 2019 to February 13, 2020.”

4.     “All phone records sufficient to show the caller, recipient, date, and duration of phone calls made to or received between YOU and DIZON from June 2019 to February 13, 2020.”

5.     “All phone records sufficient to show the sender, recipient, date sent, date received, date read, and date deleted—but not the message content—of text messages sent to or received between YOU and DIZON from June 2019 to February 13, 2020.” (Morphy Decl., ¶ 2, Ex. A, Attachment 3.)

Forootan asserts that the motion should be denied as to the document requests because no “Notice to Consumer” was served. Pursuant to Code of Civil Procedure section 1985.3, subdivision (b), “[p]rior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c).”[4]

“Personal records” means “the original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any ‘witness’” which is, among other identified professions and entities, an “attorney.” (Code Civ. Proc., § 1985.3, subd. (a)(1).) “Consumer” means “any individual, partnership of five or fewer persons, association, or trust which has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary.” (Code Civ. Proc., § 1985.3, subd. (a)(2).) Pursuant to Code of Civil Procedure section 1985.3, subdivision (k), “[f]ailure to comply with this section shall be sufficient basis for the witness to refuse to produce the personal records sought by a subpoena duces tecum.”

Forootan asserts that the “consumer” here is Jennifer Hua (“Hua”). Forootan notes that Hua filed a lawsuit against Defendant in the matter Jennifer Hua v. Western Asset Management Company, LLC, Case No. 19STCV31305, filed on September 3, 2019. Forootan asserts that the records sought by the Subpoena were generated by Forootan during the time she was serving as counsel for Hua in connection with Forootan’s investigation of possible claims by Hua against Defendant, and that the records accordingly “pertain” to Hua and the services provided to Hua by Forootan. But as Defendant notes, the records requested in the Subpoena concern communications between Plaintiff and Forootan, not Hua and Forootan.

Forootan also asserts that the motion should be denied as to the document requests in the Subpoena because no responsive documents exist.

Forootan notes that she testified at her March 29, 2022 deposition that she did not take a copy of the Hua file with her when she left Workplace Justice. (Morphy Decl., ¶ 7, Ex. E (Forootan Depo.) at p. 14:7-9.) Forootan’s email communications with Plaintiff occurred through her work email address for Workplace Justice, not her personal email address. (Id. at pp.10:19-11:2). Forootan searched for responsive records but did not locate any. (Id. at pp. 8:19-21; 9:7-9; 9:10-15.) Forootan indicated that she sought a copy of phone records from her cell phone carrier, but they no longer had the phone records. (Id. at pp. 26:22-27:4.)

Defendant argues that if Forootan has no responsive documents, then there was no basis for her to object to the Subpoena. But as discussed above, Forootan testified that she searched for responsive records and did not locate them. Accordingly, the Court does not find that an order compelling Forootan to produce the documents requested in the Subpoena is warranted. As set forth above, “[i]f 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), emphasis added.) 

Disputed Questions

            As to the disputed deposition questions, Defendant indicates that Forootan refused to answer the following four questions (the “Disputed Questions”):

1.     “So, Ms. Forootan, when you had your initial communication with Mr. Dizon, did you disclose to Mr. Dizon that he could be terminated for providing confidential information to you?” (Morphy Decl., ¶ 7, Ex. E (Forootan Depo.) at pp. 18:20-19:2.)

2.     “And, Ms. Forootan, during your initial communication with Mr. Dizon, did you – did you advise Mr. Dizon that disclosure of any confidential records of Western Asset would violate the company’s policy with respect to confidentiality?” (Id. at p. 19:4-12.)

3.     “And during your phone conversation with Mr. Dizon, did you ask him to provide you with any records?” (Id. at pp. 20:20-21:3.)

4.     “I’m asking you -- let me ask you this, Ms. Forootan. Did you understand that you had an obligation to notify Western Asset if you received company records such as the IT career pathways or the career framework?” (Id. at p. 25:11-14.)

Defendant asserts that each of the Disputed Questions falls within the scope of the “Stipulation and [Proposed] Order Re Deposition of Non-Party Shirin Forootan” (the “Stipulation”) between Defendant and Forootan. (Morphy Decl., ¶ 6, Ex. D.) The Stipulation provides, inter alia, that it is agreed that “[t]he scope of the deposition will be limited to (a) communications between Plaintiff Jason Dizon and Deponent (or Workplace Justice) occurring prior to February 13, 2020; and (b) reasonably necessary foundational or follow-up questions for the same.” (Morphy Decl., ¶ 6, Ex. D, ¶ 2.)

Forootan counters that the Stipulation also provides that “[t]he parties reserve the right to assert objections to specific questions during the deposition.” (Morphy Decl., ¶ 6, Ex. D, ¶ 4.)

Forootan also notes that the Stipulation provides that “Defendant will not ask Deponent any requestions regarding Deponent’s mental impressions or thoughts relating to any of the information discussed or otherwise provided by Plaintiff.” (Morphy Decl., Ex. D, ¶ 3.) Forootan asserts that Question No. 4 expressly falls within this prohibition. The Court agrees, and thus does not find that Defendant has demonstrated good cause to compel further deposition testimony as to this question.

Forootan also asserts that Questions Nos. 1 and 2 impliedly seek information regarding her “mental impressions or thoughts.” Forootan asserts that implied in those question is the premise that Forootan thought or should have thought that it was true that Plaintiff would violate Defendant’s policy or could be terminated for providing her with records. However, the Court does not find that these questions directly seek Forootan’s mental impressions or thoughts relating to the information discussed or provided by Plaintiff.

As to the first through third questions, Forootan also asserts that the work product doctrine shields Forootan’s investigation into Hua’s claims. Forootan cites to Coito v. Superior Court (2012) 54 Cal.4th 480, 494, where the California Supreme Court “conclude[d] that witness statements obtained as a result of interviews conducted by an attorney, or by an attorney’s agent at the attorney’s behest, constitute work product protected by section 2018.030.”

But as discussed above, the parties stipulated that the scope of the deposition includes “(a) communications between Plaintiff Jason Dizon and Deponent (or Workplace Justice) occurring prior to February 13, 2020; and (b) reasonably necessary foundational or follow-up questions for the same.” (Morphy Decl., ¶ 6, Ex. D, ¶ 2.)

Defendant also asserts in the motion that “[a]t the time that Forootan spoke to Dizon in July 2019, both Dizon and Hua were still employed by [Defendant]. Neither had been terminated and neither had filed a lawsuit against [Defendant]. Hua had not yet asserted any claims again [Defendant] regarding her breach of [Defendant’s] Confidentiality Policy and neither she nor Dizon would do so until after they were terminated—nearly 8 months later. Thus, Forootan’s communications with Dizon regarding [Defendant’s] Confidentiality Policy and documents that Dizon provided to Forootan in violation of [Defendant’s] policy do not reveal Forootan’s mental impressions regarding Hua’s claims at the time of Forootan’s interview with Dizon.” (Mot. at p. 13:7-14.) Forootan does not appear to respond to this point in the opposition.

            Forootan also asserts that Questions 1 and 2 improperly assume facts not in evidence, such that answers should not be compelled. Forootan cites to People v. Jordan (1959) 169 Cal.App.2d 727, 729, where the Court of Appeal concluded that “[a] hypothetical question must be based upon facts shown by the evidence, and hence any question that assumes facts not in evidence is improper.” But the Disputed Questions at issue here are not hypothetical questions.

Forootan also contends that the questions seek information that is irrelevant to this action. Forootan argues that the questions will not tend to prove or disprove whether Plaintiff did provide confidential information to Forootan, whether Defendant terminated him for doing so, and whether Plaintiff could lawfully be terminated for doing so. Defendant asserts in the motion that “his lawsuit arises directly out of [Plaintiff’s] communications with Forootan. Specifically, [Plaintiff] was terminated from his employment at [Defendant] for sharing confidential company information with Forootan and sending confidential company documents to Hua ‘for Shirin.’ The documents and communications sought in the Subpoena would show the extent of [Plaintiff’s] breach of [Defendant’s] Confidentiality Policy and could demonstrate whether [Plaintiff] understood that he could be terminated for sharing confidential information with Foorotan.” (Mot. at p. 15:10-15.) The Court finds that the subject Questions 1-3 are relevant to the instant case.  

As to the parties’ requests for sanctions, Code of Civil Procedure section 2025.480, subdivision (j) provides that “[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.” The Court finds that the parties acted with substantial justification in presenting their positions and thus declines to award sanctions to either party.

Conclusion

Based on the foregoing, Defendant’s motion is granted in part and denied in part.

The Court grants Defendant’s motion to compel further deposition testimony of Forootan, limited to the following three questions:

1.     “So, Ms. Forootan, when you had your initial communication with Mr. Dizon, did you disclose to Mr. Dizon that he could be terminated for providing confidential information to you?”

2.     “And, Ms. Forootan, during your initial communication with Mr. Dizon, did you – did you advise Mr. Dizon that disclosure of any confidential records of Western Asset would violate the company’s policy with respect to confidentiality?”

3.     “And during your phone conversation with Mr. Dizon, did you ask him to provide you with any records?”

Defendant’s motion is otherwise denied. The Court denies the parties’ requests for sanctions.

Defendant is ordered to provide notice of this ruling.

DATED:  February 7, 2023                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court