Judge Virginia Keeny, Case LC106864 2022-09-08 Tentative Ruling

Judge: Virginia Keeny, Case: LC106864, Date: 2022-09-08 Tentative Ruling

Case Number: LC106864 Hearing Date: September 8, 2022 Dept: W

lucky’s two-way radios, inc. et al., v. cannata

motion to COMPEL FURTHER DEPOSITION OF DR. MICHAEL MOSES

Date of Hearing: September 8, 2022 Trial Date: March 13, 2023

Department: W Case No.: LC106864

BACKGROUND

Plaintiffs Lucky’s Two-Way Radios, Inc. and Buddy Corporation (“Plaintiffs”) allege that Frank J. Cannata (“Defendant”) was a consultant for Plaintiffs’ business pursuant to a consulting services agreement. While consulting for Plaintiffs, Defendant allowed or arranged for valuable company property to be taken by “Mr. Recycling” without Plaintiffs’ consent. Plaintiffs further claim that on December 8, 2017, Defendant improperly transferred proprietary information via e-mail to personal accounts. Plaintiffs allege a loss of $500,000 in property.

Plaintiffs filed a complaint on February 13, 2018. The Second Amended Complaint (“SAC”) was filed on August 7, 2020, alleging: (1) Breach of Contract; (2) Conversion; (3) Breach of Fiduciary Duty; (4) Fraud and Fraudulent Concealment; (5) Specific Performance; and (6) Permanent Injunction

On March 29, 2019, the court granted Defendant’s motion for leave to file a cross-complaint. Defendant filed the first amended cross-complaint against Plaintiffs on April 10, 2019.

Defendant filed a second amended cross-complaint (“SAXC”) on August 2, 2019. The SAXC against Plaintiffs alleges several causes of action including breach of contract, indemnity, labor code retaliation and wage and hour violations, false pretenses, fraud, battery, stored communications violations, trespass, and unfair competition.

On October 13, 2020, default was entered against Defendant because he failed to file an answer to the SAC. Default was set aside and vacated on December 17, 2020.

On July 8, 2022, Plaintiffs filed this motion seeking to compel fact witness Michael Moses, Ph.D., to answer further deposition questions regarding the following topics:

(a) Mr. Cannata’s communications with Dr. Moses related to Mr. Cannata’s alleged psychological stress resulting from this lawsuit; (b) Mr. Cannata’s conversations with Dr. Moses regarding Kathy Keller being a percipient witnesses in this matter; (c) Mr. Cannata’s conversations with Dr. Moses regarding his belief that the litigation may go on for years despite confidence in his counsel; (e) that Dr. Moses not read his notes privately to himself and then pick and choose what he can discuss as they relate to the litigation as demanded by Mr. Lesches in order for the deposition to continue forward; and (f) that Dr. Moses be ordered to refer to, decipher and state his medical notes, findings and conclusions with regard to his psychological treatment of Mr. Cannata, his alleged mental distress, the cause of said distress and identify and explain how such mental distress, if any, relates to or was caused by issues related to the ongoing litigation.

(Motion 2:7-17.) Plaintiffs also seek $5,585 in monetary sanctions against Moses and Defendant’s counsel jointly and severally.

Defendant opposes. Defendant also seeks $2,750 in monetary sanctions against Plaintiffs’ counsel only, i.e., not also against Plaintiffs themselves.

Moses does not oppose.

Plaintiffs filed a reply.

[Tentative] Ruling

I. Plaintiffs’ Motion to Compel a Further Deposition of Dr. Michael Moses is GRANTED IN SUBSTANTIAL PART. Lesches is to pay $4,000 in monetary sanctions to Plaintiffs through counsel within 20 days.

discussion

Request for Judicial Notice

The parties filed the following requests for judicial notice:

1. Plaintiffs’ Request for Judicial Notice submitted with the Motion (“Motion RJN”)

2. Defendant’s Request for Judicial Notice submitted with the Opposition (“Opposition RJN”)

3. Plaintiffs’ Request for Judicial Notice submitted with the Reply (“Reply RJN”)

These documents are all various court filings. Therefore, the court grants all of the requests.

Evidentiary Objections

Plaintiffs object to the Declaration of Frank J. Cannata in support of his opposition to the motion.

The court overrules the objection to the entire declaration. Although it appears that Defendant has filed an untimely declaration in violation of procedural requirements through a notice of errata, Plaintiffs have opposed on the merits and there is insufficient prejudice. The court prefers to reach the merits and does so.

Legal Standard

Once a party has been deposed, the other party seeking discovery may not take a subsequent deposition of that deponent. (Code Civ. Proc., § 2025.610, subd. (a).)

“If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer . . . .” (Id., subd. (a).)

“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.” (Id., subd. (i).)

For good cause shown, the court may grant leave for a subsequent deposition of that deponent. (Id., § 2025.610, subd. (b).)

Discussion

Overview of Motion and Deposition Questions at Issue

This motion arises from Defendant’s SAXC, which includes a claim that he suffered extreme emotional distress as a result of the alleged terrible work experience and mistreatment caused by Plaintiffs. Dr. Moses is Defendant’s therapist and treated Defendant before, during, and after this work experience. Plaintiffs are trying to obtain evidence of Defendant’s emotional distress, seeking to determine if the emotional distress he claims is because of: (1) the terrible work experience; (2) the lawsuit arising out of his work experience; and/or (3) other factors, including his life experiences.

The issue of Dr. Moses’ deposition has been litigated before the court before, including most notably the court’s minute order issued on February 14, 2022. In that order, the court ordered a second deposition of Dr. Moses because he failed to produce all documents required to be produced, the documents produced were illegible and/or provided in an inconsistent format, and additional time was necessary for Plaintiffs’ counsel to review the documents as necessary for the deposition.

The issue is now before the court after Dr. Moses appeared for that deposition on April 18, 2022 in Buffalo, New York.

At the deposition, Sheldon Smith, Plaintiffs’ New York counsel, deposed Dr. Moses, who was not represented by counsel, and Levi Lesches, Defendant’s counsel, was present. Lesches, made many objections based on privilege and privacy, instructing Dr. Moses, who is not his client, to not answer. Dr. Moses followed that advice and refused to answer certain questions. The parties[1] dispute whether those objections have merit. In addition, Plaintiffs argue that Lesches’ conduct caused the time granted by the court to conduct this deposition to expire, and therefore, Plaintiffs seek additional time to complete the deposition, specifically to allow Dr. Moses to read his session notes into the record and respond to questions about those notes.

The court summarizes the five questions at issue:

1. Dr. Moses and Defendant had two telephone conversations outside of their regular sessions and they spoke about the instant lawsuit. What did they discuss?

2. Defendant has a friend name Kathy Keller. What did Defendant mention about her being a witness in this case?

3. Dr. Moses read his session notes from November 21, 2018, which stated that “Patient feels his attorney confident. Will be seeing him then and go on years.” Did “[w]ill be seeing him then and go on years” refer to litigation going on for years?

4. Dr. Moses read his session notes from January 31, 2021, which stated ““Discussion legal situation.” What was said about the legal situation?

5. When Dr. Moses was about to read his session notes from December 2021, Smith wanted Dr. Moses to read his notes into the record, while Lesches wanted Dr. Moses to review his notes first and (a) skip answering questions relating to this litigation and/or (b) read his notes to the court reporter for transcription and then Lesches would review it and release any unprivileged transcription of the notes, with any privileged portions to be itemized with a privilege log. Should Dr. Moses have read the session notes from December 2021 without pre-review?

The court rules on each question separately, though certain issues overlap. Before ruling on the questions individually, the court rules on certain issues as raised by the parties.

Judicial Estoppel

As a threshold matter, Defendant argues that Plaintiffs are barred by judicial estoppel.

Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding. (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 130-131.) California courts consider five factors, applying it when “‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’” (Id. at p. 131)

Defendant argues that this motion is contrary to Plaintiffs’ prior position in moving to limit Defendant’s Hartford subpoena, when Plaintiffs argued that they had not waived privileges through sharing documents with adversarial insurance counsel for purposes of prosecuting Plaintiffs’ insurance claim. (Opposition RJN Ex. 1.) The court disagrees. Nothing in plaintiffs’ position with respect to the Hartford subpoena has any bearing on the issue of whether plaintiffs are entitled to depose Mr. Canata’s treating psychologist about information divulged to him by his patient.

Accordingly, the court reaches the merits.

Relevance of the Sought Testimony

Plaintiffs argue that the sought testimony is relevant. The court agrees.

Code of Civil Procedure section 2017.010 states that the permissible scope of discovery depends on three factors of whether the information is: (1) “relevant to the subject matter involved;” (2) admissible or “appears reasonably calculated to lead to the discovery of admissible evidence;” and (3) privileged. Additionally, courts should construe discovery statutes liberally in favor of discovery. (Williams v. Superior Court (2017) 3 Cal.5th 531, 540-541.)

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

Plaintiffs generally want to evaluate Defendant’s emotional distress claim. Is it traceable to the underlying alleged misconduct by Plaintiffs, the lawsuit, or something else? The cause of the emotional distress is relevant because it relates to the damages Defendant is claiming.

Additionally, one question involves a non-attorney who spoke with Defendant about his case, i.e., Keller. Although this communication may be entirely unimportant, plaintiffs are entitled to enquire as to everything that was said, as it may reveal whether Mr. Canata thought she was a credible witness, or whether there might be a relationship between Canata and Keller that would indicate potential bias.

Privilege Objections to Sought Testimony

The parties dispute whether Defendant asserts valid privilege objections.

“The burden of establishing that a particular matter is privileged is on the party asserting that privilege [citation].” (San Diego Professional Ass’n v. Superior Court of San Diego County (1962) 58 Cal.2d 194, 199.)

Defendant argues that there are two separate legal doctrines that protect against disclosure of communications for mental-health treatment for purposes of assisting with litigation pressures.

First, Defendant invokes Evidence Code section 912, subdivision (d), which states:

A disclosure in confidence of a communication that is protected by a privilege provided by . . . 1014 (psychotherapist-patient privilege), . . . when disclosure is reasonably necessary for the accomplishment of the purpose for which the . . . psychotherapist . . . was consulted, is not a waiver of the privilege.

However, that section has no application, where the party has placed his or her mental health at issue. (Evidence Code section 1016, subdivision (a) [“There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: (a) The patient.”])

Second, Defendant invokes Evidence Code section 952, which states:

As used in this article, “confidential communication between client and lawyer” means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.

(Evid., Code, § 952, emphasis added.)

Generally, Defendant argues that communications he had with his counsel as shared with Dr. Moses are privileged. But even under Section 952, that privilege was waived when disclosed to Dr. Moses. There is no evidence that Mr. Canata shared this information with Dr. Moses “for the transmission of the information or the accomplishment of the purpose for which the lawyer [was] consulted.” Dr. Moses was not his lawyer, an assistant to his lawyer, or working for his lawyer. If Mr. Canata shared communications with Dr. Moses about what he had learned from his attorney, he waived the privilege as to those communications. Simply because a response may possibly relate to a communication Defendant had with Lesches or relates to the litigation in general is insufficient to support the objections made.

Defendant’s arguments involving Plaintiffs’ improper reliance on Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224 Cal.App.4th 754 (Seahaus) is confusing. Plaintiffs do not cite Seahaus in their motion. Defendant’s attempt to distinguish Seahaus is irrelevant. In any event, here, Plaintiffs seek testimony regarding Defendant’s statements regarding his emotional feelings and how the litigation was affecting him, which is not the same as litigation strategy that merits protection.

Plaintiffs are trying to obtain discovery into the emotional damages suffered as a result of Plaintiffs’ alleged misconduct. Plaintiffs are permitted to inquire into the origins of the emotional damages. The subject questions are proper inquiries. They are not solely made to examine whether the litigation itself is causing Plaintiffs’ damages. In any event, Plaintiffs cannot be faulted if the questioning might elicit that testimony because the subject questions are focusing on Dr. Moses’ notes and there is no way to separate the inquiry into what caused Defendant the emotional damages. In any event, to the extent the questions reveal a cause of litigation stress, that evidence is still relevant as it relates to the evaluation of the severity of the emotional distress and treatment of that distress in comparison to the distress caused by Plaintiffs’ misconduct that gave rise to the litigation.

Question No. 1