Judge: Walter P. Schwarm, Case: 30-2021-01195105, Date: 2022-09-06 Tentative Ruling
Plaintiff’s (Le Mai Thao Doan) Motion for Protective Order to Excuse the Appearance of Mark S. Martinez at the Deposition Hearing (Motion), filed on 7-15-22 under ROA No. 55, is GRANTED.
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: [¶] (1) That the deposition not be taken at all . . . .”
On 6-4-22, Defendant (Quinlan Tran) served a Deposition on Plaintiff’s attorney, Mark Martinez, that scheduled the deposition of Plaintiff’s attorney on 7-20-22. (Martinez Decl., ¶ 6 and Exhibit 1.) On 7-8-22, Plaintiff sent a meet an confer letter to Defendant, but has not received a reply from Defendant. (Martinez Decl., ¶¶ 7 and 8.) The Motion requests “. . . a protective order that prevents Defendant from deposing Plaintiff’s attorney of record, Mark S. Martinez, Esq.” (Motion; 7:12-14.)
Defendant’s Opposition to Motion for Protective Order to Excuse the Deposition of Mark Martinez (Opposition), filed on 8-23-22 under ROA No. 85, asserts, “. . . Defendant seeks to take the deposition of Martinez ONLY if Plaintiff intends on asking questions about the settlement agreement and meetings that took place at Martinez’s office with the unrepresented Defendant.” (Opposition [ROA 85] 6:13-16; Uppercase in Opposition.) The Opposition also states, “Defendant’s only chance to prepare his defenses at time of trial is to ask Martinez, a non-party third party percipient witness, questions under oath via deposition. . . . [¶] A deposition will allow Defendant to ask questions about what happened at both the meetings that took place at Martinez’s office.” (Opposition; 7:10-19.)
Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1560 (Carehouse), states, “The adversarial system of justice presumes that the attorneys for each side oppose one another, not depose one another. We issue a peremptory writ because plaintiffs have failed to make the requisite showing of ‘extremely’ good cause to overcome the presumption against taking the deposition of defense counsel Kippy Wroten.” “To effectuate these policy concerns, California applies a three-prong test in considering the propriety of attorney depositions. First, does the proponent have other practicable means to obtain the information? Second, is the information crucial to the preparation of the case? Third, is the information subject to a privilege? [Citation.] [¶] Each of these prongs poses an independent hurdle to deposing an adversary's counsel; any one of them may be sufficient to defeat the attempted attorney deposition. [¶] Without question, the proponent has the burden of proof to establish the predicate circumstances for the first two prongs. But California has not directly addressed the issue of which party has the burden of proof to establish the third prong, that the deposition would (or would not) impinge upon privileged information. One federal court, in implementing the three-prong test, has placed the burden of establishing the applicability of the attorney-client privilege and the work product doctrine on the party opposing discovery. ‘[T]he one asserting the work-product and attorney-client privileges has the burden of demonstrating the applicability of those privileges to the specific items which he claims are not subject to discovery.’ [Citation.]” (Id., at p. 1562.)
The declaration in support of the Motion states, “On or around October 9, 2020, the parties met (Defendant in person and Plaintiff virtually) at the Law Offices of Mark S. Martinez. However, I was not directly involved in the discussions between Plaintiff and Defendant, where Plaintiff and Defendant spoke in their primary language of Vietnamese and I do not speak Vietnamese. Defendant and his alleged sister, Helen Tran, appeared in person at LOMM and Plaintiff appeared via zoom. [¶] On November 9, 2020, a second meeting was held at the Law Offices of Mark S. Martinez with the same individuals appearing in the same fashion. Again, the discussions were spoken in Vietnamese and took place for approximately three hours.” (Martinez Decl., ¶¶ 4 and 5.) The declaration in support of the Opposition does not dispute that these meetings occurred, but does not identify the parties that were present at the meeting. (Jones Decl., ¶ 5.)
Here, the court finds that Defendant has not carried Defendant’s burden of demonstrating extremely good cause to justify the deposition of Plaintiff’s attorney. The declaration in support of the Opposition does not sufficiently demonstrate the absence of other practicable means to obtain the information. Further, the declaration in support of the Opposition does not sufficiently explain how the deposition from Plaintiff’s attorney is crucial to the preparation of the case especially in light of Evidence Code section 1152.
Therefore, the court GRANTS Plaintiff’s (Le Mai Thao Doan) Motion for Protective Order to Excuse the Appearance of Mark S. Martinez at the Deposition Hearing, filed on 7-15-22 under ROA No. 55, based on the Deposition Subpoena issued on 6-24-22. (Martinez Decl., ¶ 4 and Exhibit 1.) The court DENIES Plaintiff’s request for a monetary sanction because Defendant was substantially justified in opposing the Motion. The evidence of the settlement meetings appears relevant to Plaintiff. Plaintiff’s attorney was present at these meetings, and was a percipient witness at these meetings.
Plaintiff is to give notice.