Judge Theresa M. Traber, Case Number: 22STCV18966, Date: 2023-11-22 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV18966, Date: 2023-11-22 Tentative Ruling

Case Number: 22STCV18966 Hearing Date: January 8, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 8, 2024 TRIAL DATE: NOT SET

CASE: Yvette Espiritu v. TPX Communications, et al.

CASE NO.: 22STCV18966

MOTION FOR PROTECTIVE ORDER

MOVING PARTY: Defendant TPX Communications.

RESPONDING PARTY(S): Plaintiff Yvette Espiritu

CASE HISTORY:

· 06/09/22: Complaint filed.

· 11/27/23: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for disability discrimination and wage and hour violations. Plaintiff alleges that Defendants wrongfully terminated her for taking an extended medical leave of absence.

Defendant moves for a protective order precluding Plaintiff from deposing its former in-house counsel, Lala Asadorian.

TENTATIVE RULING:

Defendant’s Motion for Protective Order is GRANTED IN PART.

Plaintiff may take the deposition testimony of Lala Asadorian only as to the following limited matters:

(1) the witness’s job duties and employment history with Defendant

(2) The identity of Defendant’s executive personnel before and after its acquisition by Siris in or around early 2020, to the extent of their names, titles, and job duties.

(3) all-hands meetings held by Defendant’s CEO, limited to the form and time of those meetings, the stated purpose of those meetings, and their participants.

(4) any hiring and replacement policy implemented by Defendant after the 2020 acquisition, limited to the existence of any such policy, its effective dates, the categories of employees, if any, under the policy, and the departments affected by it.

DISCUSSION:

Defendant moves for a protective order precluding Plaintiff from deposing its former in-house counsel, Lala Asadorian.

Plaintiff’s Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of (1) the Complaint in this action and (2) Defendant’s online announcement of its acquisition by Siris Capital Group and subsequent changeover of executive personnel. Request No. 1 is GRANTED pursuant to Evidence Code section 452(d) (court records). However, no authority justifies taking judicial notice of statements made on a website, as there is no indication that this is a source of reasonably indisputable accuracy. Request No. 2 is DENIED. That said, to the extent this document is relevant to the Court’s ruling, it will be considered as supporting evidence.

Meet and Confer

Before filing a motion for a protective order, Defendant is required to file a declaration stating his efforts to meet and confer with the opposing party to resolve this dispute, showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc. § 2016.040.)

Defendant did not include a declaration specifically describing its efforts to meet and confer with Plaintiff to resolve this dispute, and the affidavits which have been included with the moving papers are entirely silent on Defendant’s meet and confer efforts. Instead, Defendant’s counsel complains that Plaintiff did not meet and confer before noticing the deposition. (Declaration of Rick Reyes ISO Mot. ¶ 9-11.) This argument is irrelevant. Defendant is obligated to engage in a reasonable and good-faith attempt to resolve this dispute before bringing this motion, and to provide evidence that such an attempt was made. Defendant has wholly failed to satisfy its statutory obligations in this respect. In the interest of an efficient resolution of this dispute, however, the Court will address the motion on its merits.

Analysis

Plaintiff moves for a protective order limiting Defendant TPX Communication’s special interrogatories.

Defendant does not identify the statute under which this protective order is sought in the Notice of Motion. However, the Memorandum of Points and Authorities accompanying this motion cites Code of Civil Procedure section 2025.420, which is the provision that authorizes a party, deponent, or any other affected person or entity to move for a protective order. (Code Civ. Proc. § 2025.420(a).) Subdivision (b) authorizes the Court, for good cause shown, to issue a protective order “to protect any party or other natural person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. § 2025.420(b).) A protective order under this section may include but is not limited to one or more of the following orders, inter alia:

(1) That the deposition not be taken at all.

. . .

(5) that the deposition be taken only on certain specified terms and conditions.

(Id.)

Defendant moves for a protective order precluding Ms. Asadorian from giving deposition testimony in this matter. Plaintiff noticed Ms. Asadorian’s deposition on November 7, 2023, and then again on November 16, 2023. (Declaration of Rick Reyes ISO Mot. ¶¶ 9-10.) The deposition subpoena does not identify the matters on which Ms. Asadorian’s testimony is sought. (Id. Exh. 2.) Defendant contends that any testimony Ms. Asadorian might provide on Plaintiff’s employment would necessarily fall under the attorney-client privilege and attorney work product doctrine because Ms. Asadorian was employed as Defendant’s general counsel—i.e., as Defendant’s attorney. (See Cosco v. Superior Ct. (2009) 47 Cal.4th 725, 740-41.) Certainly, inquiries into Ms. Asadorian’s communications with Defendant would be protected under attorney-client privilege, (Evid. Code § 954) Similarly, inquiries into her mental processes, such as her impressions, conclusions, opinions, legal research, or theories, is protected by the attorney work product doctrine. (Code Civ. Proc. § 2018.030; People v. Collie (1981) 30 Cal.3d 43, 59 [“At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.”]) Defendant offers no authority, however, establishing that all testimony relating in any way to Plaintiff’s employment necessarily falls under either privilege. In any event, Defendant further argues that any testimony which Ms. Asadorian could give that is not about Plaintiff’s employment is facially irrelevant. Thus, Defendant contends that Ms. Asadorian cannot give any relevant testimony which would not implicate either privilege.

Plaintiff’s opposition narrows the scope of the deposition to Ms. Asadorian’s job duties, changeover in Defendant’s executive personnel, the CEO’s all-hands meetings, and whether Defendant had a human resources policy of replacing older employees with younger employees. Specifically, Plaintiff states that the inquiry will be limited to Ms. Asadorian’s work history to establish her experience and foundation for testimony, public information regarding Defendant’s executive personnel, and strictly factual information regarding the all-hands meetings and the HR policy identified. With respect to the all-hands meetings, Plaintiff states that questions will be limited to the form and time of the meetings, the stated purpose of those meetings, and their participants. As to the hiring policy, Plaintiff states that her questions will be limited to whether the policy exists, its effective dates, how employees were categorized, and what departments were affected.

In reply, Defendant argues that these limited categories still intrude on the attorney client privilege, relying on Nowell v. Superior Court for the proposition that inquiry into any facts surrounding a protected communication is also privileged. (Nowell v. Superior Court (1963) 223 Cal.App.2d 652, 656-57.) However, as Plaintiff observes in her opposition, Nowell did not make such a broad conclusion, but rather was a fact-specific holding that questions asking whether the client sought advice from counsel and relied upon any advice given in acting invaded privileged matters. (Id.) Defendant also relies extensively on Zurich Am. Ins. Co. v. Superior Court to argue that any communications involving counsel necessarily are privileged. (Zurich Am. Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1495.) But Zurich expressly states that otherwise routine, nonprivileged communications are not privileged merely because counsel is included, and that the client may not shield facts from disclosure. (Id.at 1504.) As a matter of law, Defendant cannot preclude Plaintiff from asking Ms. Asadorian about facts known to her which may have been discussed in privileged communications. Nor can Defendant preclude Plaintiff from asking about communications made by the client to persons outside the privilege, as might be the case for Human Resources Department-wide meetings at which Ms. Asadorian was present.

Defendant also argues both in the moving papers and the reply brief that any testimony from Ms. Asadorian that could be given by another witness is somehow burdensome and harassing to Defendant. No authority is cited for this argument, and it is difficult to see how deposition of a third-party witness could be a burden on Defendant. This objection is not persuasive.

In sum, Defendant has not demonstrated to the Court’s satisfaction that good cause exists to preclude Ms. Asadorian from giving deposition testimony in the manner described by Plaintiff in her opposition. However, the Court does find good cause to limit the deposition testimony to those matters to minimize the risk of invading privileged topics.

Sanctions

Defendant requests monetary sanctions against Plaintiff and her counsel for misuse of the discovery process.

Code of Civil Procedure section 2023.030 authorizes the Court to impose monetary sanctions on any attorney engaging in the misuse of the discovery process by requiring that attorney to pay the reasonable expenses incurred by anyone as a result of that conduct. (Code Civ. Proc. § 2023.030.) Moreover, 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 under this section, 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.” (Code Civ. Proc. § 2025.420(h).)

As neither party fully prevailed on the motion, the Court does not find sanctions to be warranted in this instance.

CONCLUSION:

Accordingly, Defendant’s Motion for Protective Order is GRANTED IN PART.

Plaintiff may take the deposition testimony of Lala Asadorian as to the following limited matters only:

(1) the witness’s job duties and employment history with Defendant

(2) The identity of Defendant’s executive personnel before and after its acquisition by Siris in or around early 2020, to the extent of their names, titles, and job duties.

(3) all-hands meetings held by Defendant’s CEO, limited to the form and time of those meetings, the stated purpose of those meetings, and their participants.

Defendant’s request for sanctions is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: January 8, 2024 ___________________________________

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.