Judge: Upinder S. Kalra, Case: 22STCV08347, Date: 2023-02-23 Tentative Ruling
Case Number: 22STCV08347 Hearing Date: February 23, 2023 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: February
23, 2023
CASE NAME: Pomona Healthcare & Wellness, LLC,
et al. v. Hester Law Group, APC, et al.
CASE NO.: 22STCV08347
MOTION
FOR PROTECTIVE ORDER
MOVING PARTY: Plaintiffs Pomona Healthcare &
Wellness Center, LLC, Pomona Nursing & Healthcare Centre, LLC, Rockport
Administrative Services, LLC, and Brius Management Co.
RESPONDING PARTY(S): Defendants Hester Law Group,
Cecille L. Hester and Bryan Carney
REQUESTED RELIEF:
1. An
order granting the Protective Order
TENTATIVE RULING:
1. Motion
for Protective Order is GRANTED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On March 8, 2022, Plaintiffs Pomona
Healthcare & Wellness Center, LLC, Pomona Nursing & Healthcare Centre,
LLC, Rockport Administrative Services, LLC, and Brius Management Co.
(“Plaintiffs”) filed a complaint against Defendants Hester Law Group, Cecille
L. Hester, and Bryan Carney (“Defendants”). The complaint alleged three causes
of action: (1) Professional Negligence, (2) Breach of Contract, and (3) Breach
of Fiduciary Duty. The complaint alleges that the Defendants mismanaged the
legal representation of the Plaintiffs by failing to compel another matter to
arbitration, failed to communicate with the Plaintiffs and neglected discovery.
This failure resulted in numerous sanctions and a settlement that was over the
estimated amount by a million dollars.
On May 11, 2022, Defendants Hester
Law Group, APC and Cecille L. Hester filed an Answer.
On May 16, 2022, Defendant Carney
filed a Demurrer without a Motion to Strike.
On July 22, 2022, Plaintiffs filed a First Amended
Complaint.
On August 23, 2022, Defendant Carney filed a Demurrer and
Defendants Carney, Hester Law Group, APC and Cecille L. Hester filed a Motion
to Strike.
The current Motion for Protective Order was filed on November
14, 2022. Defendants’ Opposition was filed on February 1, 2023. Plaintiffs’
Reply was filed on February 15, 2023.
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.)
ANALYSIS:
Meet and Confer
In order for the
Court to grant a protective order, the movant must submit a meet and confer
declaration. In the Declaration filed by Plaintiffs’ Counsel, Farah Tabibkoei,
the parties met and conferred via email as well as telephonically on various
dates between August 15, 2022 – the date counsels initially conferred via
telephone as to the stipulated protective order. Counsels emailed in September,
October, and November. Additionally, in the Declaration field by Defendants’
counsel, Janette S. Bodenstein, the parties agreed to discuss the matter at the
IDC set for January 12, 2023. However, this IDC was vacated due to a pending
notice of related case. Since January 10, 2023, the parties have submitted or
will have submitted various non-confidential documents.
Good Cause
Plaintiffs move for a protective order.
Plaintiffs argue that good cause
exists for issuing a protective order for various reasons. First, an order is
required to protect private settlement communications. Second, the order is
necessary to protect confidential proprietary information. Third, an order is
necessary to abide by confidentiality agreements. Fourth, this order is
necessary to protect third party privacy rights.
Plaintiffs also argues that the
terms are reasonable, as it provides the parties flexibility in designating
documents as “Confidential.”
Defendants argue
that the protective order is too broad and an order with a more limited scope
of documents subject to confidentiality should be entered. For example, the
confidential settlement agreements for the causes of action based on elder
abuse violations are not enforceable under CCP § 2017.310(a), which indicates
that confidential settlement agreements are disfavored based on elder abuse.
Second, Defendants argue that Plaintiffs have failed to demonstrate that the
communications between Plaintiffs and HLF contain proprietary information.
Defendants protective order should be entered because the order is not overly
restrictive.
Based on the
reply filed by Plaintiffs, the parties agree that certain individuals may
review confidential information. These include insurance or claims adjusters,
with the caveat that these individuals must be provided with the protective
order and sign an agreement agreeing to it. Additionally, Plaintiffs did not
oppose the provision about designating parties’ own documents or public
documents. As for administrative officers, Plaintiffs argue that this provision
is vague, but Plaintiffs Protective Order, paragraph 13, deals with subpoenas
from third parties.
The Court finds that the protective
order as proposed by Plaintiffs is appropriate. 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.) Here,
it seems as though the parties are willing to enter into a protective order.
While Defendants argue that designating the documents as confidential is too
limiting, the provision in the proposed order, specifically paragraph 6,
allows for a party to object to a document’s designation as Confidential and
provides the procedure. Lastly, as to the Defendants’ proposed revisions to
Plaintiffs proposed order (Opp. 7: 8-20), the Court finds that these provisions
should be included as they are not broad. As stated above, the caveat of
having insurance claims and adjusters sign a statement agreeing to the
protective order is appropriate and not restrictive or excessive.
CONCLUSION:
For
the foregoing reasons, the Court decides the pending motion as follows:
Motion for Protective
Order is GRANTED, as proposed by Plaintiffs, and to include the proposed
revisions to include the following:
·
“CONFIDENTIAL”
documents may be shown to HLG’s insurance or claims adjusters (Exhibit “3”, ¶
9(j))
·
the
parties are not prohibited from disclosing their own “CONFIDENTIAL” materials
to anyone it deems appropriate; (Exhibit “3,” ¶ 19)
·
the
Order does not apply to materials which are already in the public domain,
obtained through a source other than the designating party, already in the
possession of a party at the time of disclosure and was obtained directly or
indirectly from the designating party, or is made available by a third party
who obtained the documents by legal means and without any obligation of
confidence to the party claiming its confidential nature. (Exhibit “3,” ¶¶
5(a)-(d) and 18).
Moving party is to give notice.
IT IS SO ORDERED.
Dated: February
23, 2023 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court