Judge: Upinder S. Kalra, Case: 20STCV49136, Date: 2022-09-01 Tentative Ruling
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Case Number: 20STCV49136 Hearing Date: September 1, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: September
1, 2022
CASE NAME: Tracy Stewart v. County of Los Angeles,
et al.
CASE NO.: 20STCV49136
DEFENDANT’S
MOTION FOR PROTECTIVE ORDER
MOVING PARTY: County of Los Angeles
RESPONDING PARTY(S): Plaintiff Tracy Stewart
REQUESTED RELIEF:
1. An
order issuing a protective order pursuant to CCP § 2025.420
TENTATIVE RULING:
1. Motion
for Protective Order is DENIED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On December 23,
2020, Plaintiff Tracy Stewart (“Plaintiff”) filed a complaint against
Defendants County of Los Angeles, Timothy Murakami, and Does 1 through 99
(“Defendants”). The complaint alleges five cause of action: (1) FEHA
Discrimination – Disparate Treatment, (2) FEHA Discrimination – Disparate
Impact, (3) FEHA Work Environment Harassment, (4) FEHA Retaliation, and (5)
FEHA Failure to Prevent Harassment, Discrimination, or Retaliation. The
complaint alleges that the Plaintiff was denied a promotion by the Defendants
based on her race and was subjected to racial harassment and discrimination.
On March 18,
2021, Plaintiff filed a First Amended Complaint.
On May 28, 2021,
Defendant County of Los Angeles filed a Demurrer with Motion to Strike, which
was SUSTAINED, with leave to amend.
On September 21,
2021, Plaintiff filed a Second Amended Complaint.
On October 21,
2021, Defendants filed a Demurrer without a Motion to Strike, which was
OVERRULED.
On January 21,
2022, Defendants filed an Answer.
LEGAL STANDARD
When a party demands the production of documents, the
responding party may move for a protective order, which shall be accompanied
with a meet and confer declaration. (C.C.P. § 2031.060(a).) For “good
cause” shown, the court may make whatever order justice requires to
protect a party against “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:
Code Civ. Proc., § 2031.060.¿
“The state has two substantial interests in regulating
pretrial discovery. The first is to facilitate the search for truth and promote
justice. The second is to protect the legitimate privacy interests of the litigants
and third parties…The trial court is in the best position to weigh fairly the
competing needs and interests of parties affected by discovery.
[Citation.]’ (Stadish v.
Superior Court, supra,¿71 Cal.App.4th at p. 1145). A trial court must
balance the various interests in deciding ‘whether dissemination of
the documents should be restricted.’ (Id.¿at p. 1146) Further, even where a motion for
a¿protective¿order¿is denied in whole or in part, the trial court may still
impose “terms and conditions that are just.” (Nativi v. Deutsche Bank Nat'l Tr. Co., (2014) 223
Cal. App. 4th 261, 317).
A party seeking the protective order bears the burden of
proof to establish good cause and cannot use mere conclusions to establish good
cause without a factual showing. (Id. at
318.)
Code Civ. Proc., § 2025.420 provides in pertinent
part the following:
“(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.
(b)
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….”
ANALYSIS:
Meet and Confer
In order for the
Court to grant a protective order, the movant must submit a meet and confer
declaration. The Declaration of Sherry Gregorio indicates that Defendant
contacted Plaintiff with a proposed stipulated protective order. This was based
on Plaintiff’s counsel previously agreeing to a similar stipulation. However,
as evidence in Exhibit B of the Gregorio Declaration, Plaintiff would not
stipulate to the protective order.
Good Cause
Defendant moves for a protective
order, pursuant to CCP § 2025.420.
Defendant contends that this
protective order is necessary to prevent the disclosure of portions of depositions
and other discovery materials from being posted or shared on social media
platforms, such as YouTube, or shared with the news media, until the resolution
of this case. Further, this request is narrowly tailored as it only precludes
dissemination of the information on social media platforms as well as with the
news media until the end of the case. Without this order, Defendant County will
suffer prejudice as it will potentially taint the jury pool.
Plaintiff argues that a protective
order is unnecessary, and Defendant has failed to establish good cause of four
main reasons. First, Defendant is seeking a prior restraint; the request is
attempting to limit speech. However, Defendant has not identified the specific
content of the deposition that poses a present danger, and the request is not
narrowly tailored since it seeks to protect all depositions. Second, good cause
does not exist for this order. Depositions are presumptively public. (See San Jose Mercury News, Inc. v. U.S.
Dist. Court--Northern Dist. (San Jose) (9th Cir. 1999) 187 F.3d 1096, 1103,
stating, “It is well-established that the fruits of pretrial discovery are, in
the absence of a court order to the contrary, presumptively public.”) Moreover,
Defendant’s motion fails to identify what the Court should protect or the harm
that will occur if the protection is not put in place. Additionally, this
matter involves a substantial public interest; “depositions generated in
litigation arising out of claims against the City also relate to the conduct of
public business subject to disclosure pursuant to the California Public Records
Act.” (City of Los Angeles v. Superior
Court (1996) 41 Cal.App.4th 1083, 1088.) Further, Defendant has not
sufficiently justified the “broad confidentiality provision it seeks.” Lastly,
Defendant’s contention that failure to obtain a protective order would taint
potential jurors is unavailing. There are measures, such as voir dire, to
ensure that potential jurors do not use any other evidence than that presented
in court. (See Irvin v. Dowd (1961)
366 U.S. 717, 723, “It is sufficient if the juror can lay aside his impression
or opinion and render a verdict based on the evidence presented in court.”)
The
decision as to whether to enter a protective order lies within the sound
discretion of the court. (Raymond
Handling Concepts Corp. v. Sup. Ct. (1995) 39 Cal.App.4th 584, 588, 591; Meritplan Ins. Co. v. Sup. Ct. (1981)
124 Cal.App.3d 237, 242.) The moving party has the burden of showing good cause
for protective order. (Emerson Elec. Co.
v Sup. Ct. (1997) 16 Cal.4th 1101, 1110.)
“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: (5) That the
deposition be taken only on certain specified terms and conditions… (10) that
the scope of the examination be limited to certain matters.”
(CCP. § 2025.420(b).)
The Defendant’s argument is
unavailing, to a certain extent. “The interest in privacy is promoted by
restricting the procurement or dissemination of information from the opposing
party upon a showing of “good cause.” The trial court is in the best position
to weigh fairly the competing needs and interests of parties affected by
discovery. [citations omitted.] A trial court must balance the various
interests in deciding “whether dissemination of the documents should be
restricted.” (Nativi v. Deutsche Bank
National Trust Co. (2014) 223 Cal.App.4th 261, 317.) To obtain a protective
order, the moving party must demonstrate good cause. The proposed order is too
broad and Defendant has failed to demonstrate good cause. In Nativi, the court found that the
Respondent’s declaration in support of the motion “was entirely conclusory and
lacked any factual specificity…[Respondent] made no factual showing that (1)
the documents that it had been ordered to produced contained confidential
commercial information or information in which it had any protectable interest
or (2) dissemination of the documents to the public would result in injury. (Id. at 318.) Here, Defendant argues that
they will potentially suffer prejudice in that this information could taint
potential juror’s opinions. This is insufficient as there are procedures to
ensure that jurors will utilize the information in court, not obtained
elsewhere. Moreover, Defendant’s rely on an Los Angeles Times article that was
published in relation to another matter for the contention that if information
from depositions is disseminated, it will harm the Defendant. However, this
argument is unavailing because not everyone has a subscription to or reads the
Los Angeles Times. Further, there has been and will always be “high profile”
matters, where the media has already written countless articles about it. Even
then, courts everywhere have the ability to ensure that jurors are evaluating
evidence correctly and not basing opinions on outside articles, such as the one
presented by Defendant.
While Defendant argues that under Seattle Times Co. v. Rhinehart, (1984)
467 U.S. 20, pretrial discovery should not be disclosed, this argument fails.
As the Court in Perez stated, “Seattle Times does not hold that
discovery cannot be provided to the public even if those factors weigh in favor
of disclosure.” Perez v. City of Fresno
(E.D. Cal. 2020) 482 F.Supp.3d 1037, 1048, reconsideration denied (E.D. Cal.
2021.) Some of the factors utilized in Perez indicate that dissemination is
allowable. These factors include purpose of disclosure and public entities.
Here, the purpose of the disclosure would be important as it involves
allegations of racism within the Los Angeles Sheriff’s Department. Also, this
involves public entities; “Some of the parties benefitting from the protective
order are public entities and public officials. This weighs in favor of
disclosure.” (Id. at 1046-1047.) Furthermore, Defendant’s contention that this
does not involve a public interest fails. While this may be a FEHA claim, it
involves public officers and allegations of racism. “A desire to educate the
public about issues involving public officers is a legitimate reason to
disclose information produced in discovery.”
(Id. at 1045.)
Lastly, the parties have already
stipulated to a protective order. To the extent that certain confidential
information is obtained in the depositions, such as personnel records, that is
outside the already agreed upon protective order, that information shall be
redacted in the event it is disseminated.
Conclusion:
For
the foregoing reasons, the Court decides the pending motion as follows:
The Motion for Protective Order is
DENIED WITHOUT PREJUDICE.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: September
1, 2022 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court