Judge: Theresa M. Traber, Case: 20STCV40080, Date: 2023-01-13 Tentative Ruling

Case Number: 20STCV40080    Hearing Date: January 13, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     January 13, 2023                               TRIAL DATE: February 28, 2023

CASE:                         Dr. Melina Abdullah, et al. v. Jacquelyn Lacey, et al.

CASE NO.:                 20STCV40080

MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT

MOVING PARTY:               Plaintiffs Melina Abdullah, Dahlia Ferlito, and Justin Marks

RESPONDING PARTY(S): Defendant Jacquelyn Lacey

CASE HISTORY: 

·         10/19/20: Complaint filed. 

·         11/05/20: First Amended Complaint filed. 

·         02/05/21: Second Amended Complaint filed. 

·         04/12/21: Third Amended Complaint filed. 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: 

Plaintiffs allege that they were peacefully protesting outside of Defendants’ home when Defendants conspired to compel them to leave by having Defendant David Lacey threaten Plaintiffs with a handgun when they rang Defendants’ doorbell. Plaintiffs also allege that Defendants then made false and misleading statements about the incident when it was under investigation. 

            Plaintiffs move to compel Defendant Jacqueline Lacey’s responses to 53 unanswered questions from her deposition.

TENTATIVE RULING:

Plaintiffs’ Motion to Compel Further Responses to Deposition is GRANTED.

Defendant is ordered to respond to the outstanding deposition questions within 30 days of the date of this order.

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DISCUSSION:

            Plaintiffs move to compel Defendant Jacqueline Lacey’s responses to 53 unanswered questions from her deposition.

Legal Standard

            Code of Civil Procedure section 2025.480, subdivision (a) states: “If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer .¿.¿.¿.” “If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given 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.” (Code Civ. Proc. § 2025.480(i).) 

Timing:

            A motion to compel further responses to deposition questions must be “made no later than 60 days after the completion of the record of the deposition.” (Code Civ. Proc. § 2025.480(b).) Here, Defendants received the notice of the completed deposition transcript by email on November 21, 2022. (Declaration of Carl Douglas ISO Mot. ¶ 3.) The motion was filed on December 13, 2022. Plaintiff does not dispute the timeliness of the motion, which is timely.

Meet and Confer:

            Before moving to compel answers to deposition testimony, the parties must make a reasonable and good faith attempt to informally resolve the issues presented by the motion, and the motion to compel must be accompanied by a declaration stating facts showing such attempts. (Code Civ. Proc. §§ 2016.040; 2025.480(b).) Counsel must “attempt to talk the matter over, compare their views, consult and deliberate.” (Townsend v. Sup. Ct. (EMC Mortg. Co.) (1998) 61 Cal.App.4th 1431, 1433.)

            The declaration of Carl Douglas states that the parties exchanged meet and confer letters between November 29 and December 5, 2022. (Douglas Decl. Exhs. A-B.) Plaintiffs’ counsel does not describe any additional efforts to meet and confer to resolve this dispute. A cursory exchange of formalistic letters, with no further dialogue between the parties, is not sufficient to satisfy the parties’ meet and confer obligations. Nevertheless, the Court will address the merits of the motion to facilitate a speedy resolution to this dispute.

Analysis

            Plaintiffs move to compel Defendant Jacqueline Lacey’s responses to 53 unanswered questions from her deposition. Defendant refused to answer each of the 53 questions, all pertaining to the Defendants’ conduct alleged in the pleadings, based on the spousal communication privilege.

            The spousal communications privilege allows a spouse, whether or not a party, to refuse to disclose, and to prevent others from disclosing, a confidential communication between spouses made while they were spouses. (Evid. Code § 980.) The burden rests on the party opposing the assertion of the privilege to either disprove the existence of the privilege by a preponderance of the evidence or advance any preliminary fact necessary to show that an exception to the privilege applies. (People v. Bryant, Smith, & Wheeler (2014) 60 Cal.4th 335, 420.)

            Plaintiffs first contend that the spousal communication privilege does not apply in this case under Evidence Code section 973. This section provides:

(a) Unless erroneously compelled to do so, a married person who testifies in a proceeding to which his spouse is a party, or who testifies against his spouse in any proceeding, does not have a privilege under this article in the proceeding in which such testimony is given.

(b) There is no privilege under this article in a civil proceeding brought or defended by a married person for the immediate benefit of his spouse or of himself and his spouse.

(Evid. Code § 973.) In an action for the “immediate benefit” of a person, liability must be immediate and direct. (Waters v. Superior Court of Los Angeles County (1962) 58 Cal.2d 885, 898 [ruling on whether plaintiff was entitled to take deposition of an unserved defendant as person for whose immediate benefit the action was defended].)

            Plaintiffs contend that the exception under Evidence Code section 973(b) applies here because this action is a tort action against both Mr. and Mrs. Lacey for their conduct, including alleged assault and battery, intentional infliction of emotional distress, and negligence. Plaintiffs argue that even if Mrs. Lacey were not personally liable, she would have an interest in this outcome because she would still be liable for a money judgment against Mr. Lacey. Plaintiffs principally rely on Hand v. Superior Court in support of this contention, in which the Court of Appeal found that the non-injured spouse of the plaintiff in a personal injury suit had a direct interest in the outcome of the suit, and therefore the privilege was waived. (Hand v. Superior Court (1982) 134 Cal.App.3d 436, 442.)

            Defendant contends in opposition that there is a split of authority in California precedent as to the application of the spousal communications privilege. Defendant contends that Hand conflicts with a 1981 case, Duggan v. Superior Court, which held the application of immediate benefit standard to be limited “to persons who are represented by a nominal plaintiff or defendant (as where a corporation serves as the alter ego of its sole shareholder) or who themselves have the right to act or defend against the adverse party on the issues involved.” (Duggan v. Superior Court (1981) 127 Cal.App.3d 267, 272 [emphasis added].) In this case, these rules do not appear to be in conflict. Plaintiffs claim that Mr. and Mrs. Lacey jointly engaged in the tortious conduct alleged in the pleadings. Therefore, applying the Duggan rule, each Defendant would therefore have the right to defend against Plaintiffs on the issues involved. Alternatively, under the Hand rule, the exception would apply because any recovery against the one defendant would directly affect the other defendant’s interest in their jointly owned community property. Defendant’s characterization of Plaintiffs’ position—that they seek to invalidate the spousal communication privilege merely because both Mr. and Mrs. Lacey just so happened to be named as defendants—is mistaken. Plaintiffs posit—correctly, in the Court’s view—that Evidence Code section 973(b) creates an exception to the spousal communication privilege where, as here, the alleged conduct of each of the spouses forms the basis of Plaintiffs’ claims.

            Based on the foregoing, the Court concludes that the spousal communication privilege does not apply to the issues raised in the deposition questions at issue.

            Although both parties discuss the spousal testimonial privilege as well in their briefing, the spousal testimonial privilege was not asserted as an objection to the deposition in general or to any of the specific deposition questions that were posed. Further, under Evidence Code section 973(a), by testifying voluntarily in the deposition in a case where Mr. Lacey was a named party, Mrs. Lacey has waived the spousal testimonial privilege. The spousal testimonial privilege would therefore not be an independent basis to deny this motion.

CONCLUSION:

Accordingly, Plaintiffs’ Motion to Compel Further Responses to Deposition is GRANTED.

Defendant is ordered to respond to the outstanding deposition questions within 30 days of the date of this order.

Moving parties to give notice.

IT IS SO ORDERED.

Dated:   January 13, 2023                               ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.