Case Number: BC699873 Hearing Date: February 21, 2020 Dept: 58

Judge John P. Doyle
Department 58

Hearing Date: February 21, 2020

Case Name: Lauricella v. Health Net of California, Inc., et al.

Case No.: BC699873

Motion: Motion for Protective Order

Moving Party: Plaintiff Yanira Lauricella

Responding Party: Defendants Health Net of California, Inc., Health Net, Inc., Lina Wade-Brickel, Linda Jeffrey, and Jennifer Brady

Tentative Ruling: The Motion for Protective Order is denied.

Plaintiff’s deposition is to be completed on or before March 31, 2020.

This is an action arising from Plaintiff’s employment as a senior case management assistant with Defendants Health Net of California, Inc. and Health Net Inc. On January 11, 2019, Plaintiff filed the operative First Amended Complaint (“FAC”) alleging causes of action for (1) breach of express and implied contract, (2) breach of the covenant of good faith and fair dealing, (3) wrongful termination in violation of public policy, (4) violation of the California Constitution, (5) FEHA discrimination, (6) FEHA harassment, (7) FEHA retaliation, (8) FEHA “failure to evaluate for accommodation”, (9) FEHA failure to accommodate, (10) intentional infliction of emotional distress (“IIED”), (11) negligent management, (12) violation of Bus. & Prof. Code §17200, and (13) fraud.

On December 10, 2019, the Court ruled as follows,

Defendants Health Net of California, Inc. and Health Net, Inc. contend that Plaintiff’s counsel has engaged in improper conduct during Plaintiff’s deposition which has made it difficult to complete said deposition. Accordingly, Defendants seek the appointment of a discovery referee for the purposes of conducting the subject deposition. Defendants also seek a protective order as follows:

1. That Plaintiffs counsel refrain from insulting counsel for Defendants during the deposition of Plaintiff.

2. That Plaintiffs counsel only make proper objections as to the form of the questions. See Code of Civil Procedure § 2025.460; objections such as “asked and answered” and “argumentative” are not proper objections. See Code of Civil Procedure § 2017.010; Coy v. Sup. Ct. (1962) 58 Cal.2d 210.

3. That Plaintiffs counsel will not assert any speaking objections or otherwise engage in any “coaching” of the deponent (i.e., by explaining rationale of her objection, which then gives Plaintiff a heads up that the area of questioning is dangerous and how she should answer). See CEB, California Civil Discovery Practice (4th Ed. 2010) §6: 100).

4. That Plaintiffs counsel not instruct Plaintiff not to answer unless objecting on grounds of privilege. See Code of Civil Procedure § 2025.460(a); Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006).

5. That all days of Plaintiffs deposition must be completed prior to Plaintiffs counsel taking the deposition of any other witness or party.

6. That the Court appoint a discovery referee pursuant to Code of Civil Procedure § 639

7. As more fully addressed below, for an Order requiring Plaintiff and/or Plaintiffs counsel to pay monetary sanctions in the amount of $6,795.00 to Defendants pursuant to Code of Civil Procedure§ 2025.420(h) and 2023.030.

Additionally, Defendants request $6,795 in sanctions against Plaintiff and/or her counsel.

(a) Discovery Referee

Because Plaintiff has indicated she is essentially insolvent and unable to share referee fees (Rand-Lewis Decl. ¶¶ 14, 27), and the parties have not been able to make arrangements to get a referee’s fees paid by other means, the Court cannot apparently appoint a discovery referee. (Code Civ. Proc. § 639.)

(b) Protective Order and Sanctions

The Court has reviewed the transcript of Plaintiff’s deposition and concludes that Plaintiff’s counsel is predominately at fault for the current impasse, but also acknowledges that there appears to be general animosity between counsel.

Indeed, it is not proper for Plaintiff’s counsel to continuously explain her objections to opposing counsel in argumentative fashion or, generally, to instruct her client not to answer unless an objection is based on a privilege or privacy concern. (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-12, Conduct of Deposition.) Plaintiff’s counsel excessively cites harassing questioning as a basis for her client not to provide responses or to threaten the adjournment of Plaintiff’s deposition. The Court notes that although defense counsel’s questions are not always perfectly crafted, Plaintiff’s counsel’s objections and her sometimes lengthy statements have needlessly delayed the completion of the subject deposition.

Thus, the Court will enter a protective order as follows.

(1) Plaintiff’s deposition is to continue on a mutually agreeable date within the next thirty[1] days.

(2) The deposition is to continue daily until completed, with a duration of at least six hours for any day, unless the parties agree otherwise.

(3) Neither party is to adjourn the deposition on the basis of harassing conduct by opposing counsel.

(4) Plaintiff’s counsel is not to engage in speaking, excessively detailed objections.

(5) Plaintiff’s counsel is not to instruct her client not to answer a question unless a proper objection was made on the basis of a privilege or privacy concern.

While the Court certainly does not invite or encourage any such motions, sometimes dysfunctional cases generate motions seeking evidentiary sanctions in due course, when discovery activities have been unreasonably impeded. Again, the Court is not suggesting that we have reached such a situation here, but the parties must be bound by the governing rules including those rules that provide for sanctions.

The Court respectfully declines to award monetary sanctions at this juncture.

The Motion for Protective Order is granted in part as set forth herein.

Plaintiff Lauricella now contends that defense counsel foiled the parties’ agreement to resume Plaintiff’s deposition on January 21, 2020, such that the Court should enter an order as follows: “(1) a Protective Order Terminating Plaintiff’s Deposition and Precluding Defendants, HEALTH NET OF CALIFORNIA, INC., HEALTH NET, INC., LINDA WADE-BICKEL, LINDA JEFFERY, and/or JENNIFER BRADY (hereinafter and collectively referred to as “Defendants”), from Conducting any further Deposition of Plaintiff, and (2) an Order to Show Cause as to why Sanctions Should not be Imposed against Defendants and their counsel of record, David Fishman, Esq. and James H. Demerjian, Esq., of Ballard Rosenberg Golper & Savitt, LLP, for their Failure to Proceed with Plaintiff’s Deposition on January 21, 2020.” (Notice at p. 2.)

Meanwhile, Defendants blame Plaintiff’s counsel for the failure to resume Plaintiff’s deposition and request the following order: “(1) an Order compelling Plaintiff to appear for the third session of her deposition on a date and time convenient for Defendants within 20 days, and (2) an Order to Show Cause against Plaintiff and her counsel as to why sanctions should not be granted.”

The following is a chronological account of the emails between counsel:

(1) Plaintiff’s counsel on 1/15/2020: “Counsel: I am requesting that we change the date for the Plaintiffs deposition I just heard from my doctor and they moved my post op visit to the morning of the depo, I will not be OK to attend that day. What are your next available dates?”

(2) Plaintiff’s counsel on 1/15/2020: “Can we move the date []to the following days, I need to go to this appointment. Thank you, Suzanne E. Rand-Lewis”

(3) Defense counsel on 1/15/2020: “No. I am not available the following day.”

(4) Plaintiff’s counsel on 1/15/2020: “what about the next few days, I really do not want to have to involve the court in this”

(5) Defense counsel on 1/15/2020: “Involve the Court? You insisted that the depo take place right at the court ordered deadline and now you are asking that we provide dates right away when my calendar is full. We are the ones who should involve the Court …”

(6) Plaintiff’s counsel on 1/15/2020: “I can not miss this doctors appointment. They changed the date on me and now I am asking you to choose another. If you are refusing I’ll have the Court do it.”

(7) Defense counsel on 1/15/2020: “I don’t have any other dates before our MSJ is due.”

(8) Plaintiff’s counsel on 1/15/2020: “Then we can shorten the notice period if necessary.”

(9) Defense counsel on 1/22/2020: “Counsel – It is my understanding that you and Plaintiff inexplicably showed up at my office yesterday for Plaintiff’s deposition which you unilaterally cancelled. You made it clear in no uncertain terms that the deposition couldn’t go forward yesterday because you had a medical appointment. Based on your representation (and our prior unsuccessful attempts to get you to show proof of unavailability) we took the deposition off calendar. A few dates have opened up in February – February 6, 7 or 10. Please let me know ASAP which of the above dates works for the completion of Plaintiff’s deposition.”

Because counsel for Plaintiff—Suzanne E. Rand-Lewis—was not available on January 21, 2020, her husband—Timothy D. Rand-Lewis (who was not present for the initial sessions of Plaintiff’s deposition)—rearranged his schedule to appear for Plaintiff’s January 21, 2020, deposition. As can be determined from the email communications above, defense counsel was not ready for the January 21, 2020 deposition because he believed that it had been cancelled.

It is apparent that if any party is more responsible than the other for the breakdown in communications leading to the parties’ failure to comply with this Court’s protective order, it is defense counsel. Circumstances often change, however, and such apparently happened to Suzanne E. Rand-Lewis when her medical appointment was unilaterally changed near the deadline to conduct Plaintiff’s deposition. She offered to shorten the notice period to bring a motion for summary judgment—the only apparent issue precluding a deposition shortly after the intended January 21, 2020 deposition date—but no response was provided by defense counsel. Defense counsel did not otherwise confirm that the deposition was cancelled, but thereafter asserted surprise when Plaintiff appeared for her deposition. In all events, there is apparently some amount of shared responsibility for the difficulties here.

Plaintiff’s deposition must be completed. The Court will not at this time enter an order terminating such deposition, without prejudice to further proceedings as to that issue and other discovery related issues.

Tentatively, the deposition shall be video-recorded, with a copy of the videotape to be made available to the Court upon request in due course. The deposition is to be completed on or before March 31, 2020.

The Court is prepared to discuss with counsel a short modification of the trial date to enable the hearing of a dispositive motion.

[1] This was apparently extended to 45 days, meaning the deadline to resume the deposition was January 24, 2020.