Judge: Walter P. Schwarm, Case: 30-2019-01094012, Date: 2022-11-29 Tentative Ruling

Motion No. 1:

The court will discuss the status of Plaintiff’s (Kevin Iwanaga) Motion to Compel Global Financial to Produce Its Person Most Knowledgeable and Documents at Deposition (Motion), filed on 9-14-21 under ROA No. 400, at the hearing on 9-14-21.

The 1-26-22 declaration from Morgan E. Podruski states, “In his motion, Plaintiff claims that ‘GFD has [refused to produce Kangas or any other PMQ witness to testify on its behalf, and has refused to provide dates for any such deposition to take place.’ This claim is patently false. [¶] Since the communications in July of 2021 referenced above, Plaintiff made absolutely no effort to meet and confer with me or anyone at my firm about scheduling additional depositions or a motion to compel. Instead, I did not hear from Plaintiff again regarding any depositions until August 18, 2021, when he served notice for the deposition of GFD’s PMK. GFD objected to the deposition notice because, among other things, Plaintiff unilaterally selected a date and neither GFD’s counsel nor its witnesses were available as noticed. [¶] After GFD objected to the deposition notice, Plaintiff’s counsel never asked me for deposition date and never attempted to meet and confer with respect to a Motion to Compel. [¶] To date, Defendants have never refused to appear for an additional deposition. The only concern I ever expressed to Plaintiff’s counsel about additional depositions was that I thought another four depositions were unnecessary because Plaintiff already deposed my clients for two days each.” (1-26-22 Podruski Decl., ¶¶ 13-16.)

Since it does not appear that Defendants object to producing a person most knowledgeable for additional deposition testimony, the court requests the parties to meet and confer regarding the scheduling of the additional deposition before the hearing on 11-29-22.

Motion No. 2:

Defendant’s (Michelle Huff Kangas) Motion for Protective Order (Motion), filed on 1-31-22 under ROA No. 501, is GRANTED in part as set forth below.

Code of Civil Procedure section 2025.420 states in part, “(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. This protective order may include, but is not limited to, one or more of the following directions: . . .[¶] (9) That certain matters not be inquired into. [¶] (10) That the scope of the examination be limited to certain matters. . . .”

The Motion a “. . . protective order that certain matters not be inquired into during discovery, including but not limited to depositions. . . .” (Notice of Motion; 2:6-8.)  Specifically, Defendant seeks to limit the disclosure of details concerning Defendant’s 2012 Criminal Case and the contents of a Confidential Juvenile Report (CJR). (Motion; 1:4-2:11.) 

Paragraph 21(e) of Plaintiff’s (Kevin Iwanaga) Revised Complaint alleges, “During business conversations, KANGAS frequently and suddenly switched to graphically discussing her criminal child molestation case and legal problems with PLAINTIFF, KANGAS explicitly described the lewd acts with a minor that KANGAS was arrested and charged for. PLAINTIFF was appalled by these details and repeatedly asked KANGAS to stop talking about it.”

Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414-1415, states, (Mogilefsky), states, “A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee's body and the sexual uses to which it could be put. [Citation.] To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor's unwelcome sexual advances. [Citation.] [¶]

By contrast, a cause of action for sexual harassment on a hostile environment theory need not allege any sexual advances whatsoever. [Citation.] A cause of action on this theory is stated where it is alleged that an employer created a hostile environment for an employee because of that employee's sex. [Citation.] For example, in Accardi, the reviewing court held a cause of action had been stated upon factual allegations that a woman police officer had been subjected to a decade long campaign against her which included threats, rejection, mockery, double standards, and intimidation. [Citation.] [¶] As might be expected, cases sometimes involve a hybrid of these two theories. A hostile work environment may result from inappropriate sexual conduct in the workplace. Under such circumstances the plaintiff may allege that the unwelcome sexual advances were sufficiently pervasive so as to also alter the conditions of employment and create an abusive work environment. [Citations.]” (See also, CACI No. 2521.)

The CJR is confidential under Welfare and Institutions Code section 827.  Paragraph 21(e) of the Revised Complaint refers to statements allegedly made by Defendant in the workplace.  Under Mogilefsky and CACI No. 2521, Plaintiff is entitled to conduct discovery regarding Defendant’s alleged statements in the workplace in support of Plaintiff’s harassment theory.

Therefore, the court will enter the following limited protective order: (1) Plaintiff’s counsel may conduct discovery, including questioning witnesses at depositions, regarding whether Defendant discussed sexual activities, criminal allegations, or related topics with employees of Global Financial Data, Inc.; and (2) Plaintiff’s counsel shall not show the CJR to witnesses or read excerpts of the CJR to witnesses.

Although Welfare and Institutions Code section 827 protects the disclosure of the contents of the CJR, Welfare and Institutions Code section 827 does not extend to facts revealed by a source other than the CJR.

In summary, the court GRANTS Defendant’s (Michelle Huff Kangas) Motion for Protective Order, filed on 1-31-22 under ROA No. 501, as set forth above.  The court DENIES each party’s request for a monetary sanction because Defendant was substantially justified in bringing the Motion and Plaintiff was substantially justified in opposing the Motion. (Code Civ. Proc., § 2025.420, subd. (h).)

Defendant is to give notice.