Cono v. Brown, et al.		CASE NO. 113CV255313
DATE: 22 August 2014	TIME: 9:00	LINE NUMBER: 18

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose.  Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 21 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 22 August 2014, the motion of plaintiff Randy Cono (“Plaintiff”) for a protective order preventing Defendant from deposing Plaintiff’s current counsel and related production of documents and for monetary sanctions was argued and submitted.  Defendant Diane Brown (“Defendant”) filed a formal opposition to Plaintiff’s motion.

Plaintiff is reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

Statement of Facts

This action arises out of the disputed ownership of a property located in Monte Sereno, California (the “Oak Knoll Property”).  According to the allegations of the operative first amended complaint (“FAC”), in January 2001, Joseph Cono (“Joseph”), Plaintiff’s now-deceased father, established a Qualified Personal Residence Trust (“QPRT”) for the purpose of transferring ownership of the Oak Knoll Property to Plaintiff.  (FAC, ¶ 6, Ex. A.)  Along with the QPRT, Joseph executed two deeds of trust to effectuate the transfer of the Oak Knoll Property to himself as trustee of the QPRT.  (FAC, ¶ 8.)

In October 2005, Joseph resigned as trustee of the QPRT, at which time Plaintiff became the successor trustee.  (FAC, ¶ 9, Ex. B.)  Upon his resignation, Joseph had no rights to take any further action as trustee of the QPRT or any trust created thereunder, as those rights transferred to Plaintiff.  (Id.)  Joseph’s cognitive abilities subsequently deteriorated steadily such that by fall 2011, he no longer had capacity and/or was highly susceptible to being unduly influenced by others.  (FAC, ¶ 12.)  In January 2008, the QPRT terminated automatically pursuant to its terms and the Oak Knoll Property was to be held in trust for Plaintiff’s benefit.  (FAC, ¶ 11.)

In October 2011, in an effort to defraud Plaintiff, Defendant, who was Joseph’s attorney, drafted a fraudulent deed transferring the Oak Knoll Property to Joseph, contrary to the terms and intent of the QPRT.  (FAC, ¶ 13, Ex. C.)  Defendant was aware of the fraudulent nature of the deed and unduly influenced Joseph into its execution so as to advance a scheme to defraud Plaintiff.  (FAC, ¶ 14.)  Shortly thereafter, a Notice to Vacate was served on Plaintiff, who at that time resided on Joseph’s property.  (FAC, ¶ 15.)  Plaintiff then served a Notice to Vacate on Joseph, who lived at the Oak Knoll Property.  (Id.)

On 28 November 2011, the first day Plaintiff could file an eviction action against Joseph, Defendant sent an email to Plaintiff’s attorney stating that the Oak Knoll Property was not in Plaintiff’s name.  (FAC, ¶ 16.)  Plaintiff’s counsel responded by providing the documents establishing Plaintiff’s claim to the Oak Knoll Property and asking if he was missing any documents.  (Id.)  Defendant merely responded, “You are.”  (Id.)  Plaintiff relied on Defendant’s misrepresentations by delaying the filing of his unlawful detainer action and filing an action to quiet title to the Oak Knoll Property.  (Id.)

On 14 February 2014, Plaintiff filed the FAC, asserting claims for slander of title and fraud against Defendant.

Discovery Dispute

On 23 June 2014, Defendant noticed the deposition of Trevor Zink, Plaintiff’s attorney who corresponded with Defendant in 2011 as alleged in the FAC, who is also Plaintiff’s counsel in this action.  The notice of deposition demanded that Mr. Zink bring a number of documents to his deposition.  On 24 June 2014, Mr. Zink emailed Defendant’s counsel, objecting to his deposition and requesting that Defendant withdraw the deposition notice.  Subsequently, counsel exchanged several emails in an effort to meet and confer regarding the deposition.

On 21 July 2014, Defendant served Mr. Zink with a deposition subpoena,[2] which identified 28 July 2014 as the deposition date.  On 24 July 2014, Plaintiff served written objections to the earlier-served deposition notice, and the parties agreed to postpone Mr. Zink’s deposition pending the resolution of a motion for a protective order to be filed with the Court.

On 25 July 2014, Plaintiff filed the present motion, along with a request for judicial notice.  Plaintiff seeks a protective order barring Defendant from deposing Mr. Zink in this action and requiring him to produce the documents identified in the notice of deposition.  On 11 August 2014, Defendant filed papers in opposition to Plaintiff’s motion.  On 15 August 2014, Plaintiff filed reply papers in support of his motion.

Discussion

Plaintiff contends that the notice of Mr. Zink’s deposition is defective and Defendant impermissibly seeks documents and testimony from counsel of record.  Defendant urges that Mr. Zink’s deposition is essential because he is a witness to the events alleged in the FAC.

        I.     Legal Standard

Before, during, or after a deposition, any party may move for a protective order.  (Code Civ. Proc. (“CCP”), § 2025.420, subd. (a).)  The Court may make any order that justice requires to protect the party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense, including a protective order providing that the deposition not be taken at all and certain writings or tangible things designated for production not be produced.  (CCP, § 2025.420, subds. (b) and (b)(11).)

The party moving for a protective order bears the burden of demonstrating good cause for the order by explaining and justifying its objections. (See Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal.4th 245, 255, citing Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.)

      II.     Request for Judicial Notice

In support of his motion, Plaintiff requests judicial notice of the FAC and the Court’s (Hon. William J. Elfving) 1 May 2014 order overruling Defendant’s demurrer to the FAC.  Defendant does not oppose Plaintiff’s request.  Plaintiff’s request is GRANTED, given that these documents are court records relevant to the scope and procedural history of this action.  (Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].)

To the extent that Plaintiff’s request is granted, however, the Court takes judicial notice of the existence of the FAC only, and not of the truth of statements contained therein.  (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 [a court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments].)

     III.     Notice of Deposition

As an initial matter, although he does not move to quash the notice, Plaintiff contends that the notice of Mr. Zink’s deposition is defective given that it references two different deposition dates and is “drafted as a party deposition.”

Plaintiff’s first argument appears to be moot given that the parties have agreed to postpone Mr. Zink’s deposition pending resolution of this motion.  Further, Plaintiff cites no authority for the proposition that a protective order should issue on the basis of an insignificant defect such as this.

Plaintiff’s second argument is not entirely clear, but does raise the issue that any deponent other than a party or an officer, director, managing agent, or employee of a party must be served with a deposition subpoena in order to be compelled to appear for deposition and produce documents.  (CCP, § 2025.280.)  However, Plaintiff acknowledges that Mr. Zink was ultimately served with a deposition subpoena.  He does not contend that the subpoena was in any way defective.  Consequently, this argument also does not establish good cause for the entry of a protective order.

    IV.     Analysis

Depositions of opposing counsel are “presumptively improper, severely restricted, and require ‘extremely’ good cause – a high standard.” (Carehouse Convalescent Hospital v. Superior Court (Sims) (2006) 143 Cal.App.4th 1558, 1562 (hereinafter, “Carehouse”), citing Spectra-Physics, Inc. v. Superior Court (Teledyne, Inc.) (1988) 198 Cal.App.3d 1487, 1493.)

The following factors determine whether a deposition of opposing counsel is allowable:

(1)    whether the party seeking the deposition has no other practical means to obtain the information sought;

(2)    whether the information sought is crucial to preparation of the case; and

(3)    whether the information is subject to a privilege. (Carehouse Convalescent Hospital v. Superior Court, supra, 143 Cal.App.4th at p. 1563; Spectra-Physics v. Superior Court, supra, 198 Cal.App.3d at p. 1496.)

But as Spectra-Physics v. Superior Court also observes,

“The practice of taking the deposition of opposing counsel should be severely restricted, and permitted only upon showing of extremely good cause.  (Fireman’s Fund Ins. Co. v. Superior Court (1977) 72 Cal.App.3d 786, 790.) That decision, and others, did permit such deposition in an insurance bad faith case, where an attorney for a party is the sole, or principal, negotiator and in which bad faith is alleged and punitive damages are sought based upon that allegation of bad faith.  (Id. at p. 790.)  (See also Meritplan Insurance Co. v. Superior Court (1981) 124 Cal.App.3d 237, 241-242.)”  (Spectra-Physics v. Superior Court, supra at 1493.) (Internal citations and punctuation modified.)[3]

“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.” (Carehouse Convalescent Hospital v. Superior Court, supra, 143 Cal.App.4th at p. 1563.)  The party seeking the deposition has the burden of proving the first two factors. (Id. at p. 1563-1564.) The burden of proving the third factor is on the party opposing the deposition. (Id.)

Here, the deposition notice does not specify the subjects concerning which Defendant seeks to depose Mr. Zink, and the deposition subpoena was not provided for the Court’s review.  However, the deposition notice does demand that Mr. Zink bring documents pertaining to several topics to his deposition, and the parties’ papers indicate that Mr. Zink’s testimony would relate to these same topics.  The deposition notice seeks documents: (1) reflecting any communications between Mr. Zink and Defendant; (2)-(5) pertaining to Plaintiff’s and Joseph’s eviction actions; and (6)-(7) relating to the legal proceedings Plaintiff was allegedly forced to initiate to establish his ownership of the Oak Knoll Property.

As to the first category of documents, communications between Mr. Zink and Defendant, Plaintiff argues that Defendant herself has access to communications she had with Mr. Zink, and Defendant does not contend otherwise.  Instead, Defendant argues that Plaintiff “made [Mr. Zink] a witness in the allegations against [Defendant]” (Opp., p. 4), given that Plaintiff relies on his communications with Defendant as evidence of Defendant’s fraudulent intent.  This Court believes that it is Defendant’s intent that is at issue in this action, not Mr. Zink’s, and there is no indication that Plaintiff intends to offer testimony by Mr. Zink in support of her claims.  Defendant provides no explanation as to why Mr. Zink’s perspective concerning these communications is even relevant to this action, let alone “crucial.”  Consequently, neither the first nor the second Carehouse factor is satisfied with respect to these documents and Mr. Zink’s related testimony.

The remaining categories of documents relate to legal proceedings in which Mr. Zink apparently represented Plaintiff.  (Mot. at p.6 [noting that Mr. Zink “has been lead counsel for Plaintiff in various related matters for the last several years”].)  As urged by Plaintiff, the majority of these documents will either be privileged (categories 3, 5, and 7 seek communications between Mr. Zink and Plaintiff pertaining to the other actions) or protected by the work product doctrine (categories 2, 4, and 6 seek Mr. Zink’s documents regarding these actions).

Any unprivileged documents should be available from Plaintiff directly.  Defendant does not address the issue of whether such documents are for some reason unavailable from another source.  Defendant contends that Mr. Zink’s testimony as “a witness to the prior litigation” is needed because Plaintiff is claiming his fees and costs in those actions as damages.  However, there is no indication that information concerning Plaintiff’s damages is not available from Plaintiff directly.

Defendant also asserts that Plaintiff waived the privilege as to these communications by placing them at issue in this litigation, but justifies this statement merely by arguing that the communications discuss issues relevant to the litigation, which is true of all attorney-client privileged communications and does not result in a waiver.  (See Mitchell v. Superior Court (Shell Oil Co.) (1984) 37 Cal. 3d 591, 606 [cases “have declined to find a waiver of the attorney-client privilege where the substance of the protected communication is not itself tendered in issue, but instead simply represents one of several forms of indirect evidence in the matter”; finding no waiver of the privilege where claims did not put attorney’s decisions, conclusions, or mental state at issue].)  Finally, Defendant contends that the plaintiff in Vercellino v. Brown (Superior Court Santa Clara County, No. 1-13-CV-255315), which has been consolidated with this action and in which Plaintiff is also represented by Mr. Zink, alleges that Joseph’s behavior during his deposition by Mr. Zink demonstrates his diminished mental capacity.  Again, however, there is no indication that the plaintiff in that case or this one intends to actually call Mr. Zink as a witness to Joseph’s behavior, or that information about the deposition is unavailable from any other witness.

In light of the above, there does not appear to be any crucial need for this information (meaning the second Carehouse factor is unsatisfied) and the information is either privileged or apparently available from another source (meaning either the first or third Carehouse factor is also unsatisfied).

This Court believes that while in the abstract Defendant might have good cause to depose Mr. Zink, those facts do not as yet appear in this record.  But this Court does not believe Defendant should be precluded, at this stage of the proceedings, from at least developing facts to support that proposition.

Therefore, Plaintiff’s motion for a protective order preventing Defendant from deposing Plaintiff’s current counsel and related production of documents is DENIED WITHOUT PREJUDICE to a showing of good cause after less intrusive means of discovery are used to develop foundational facts which might entitle Defendant to overcome the first two prongs of the Carehouse Convalescent Hospital v. Superior Court and Spectra-Physics v. Superior Court tests.

      V.     Request for Monetary Sanctions

 

 

 

 

 

    VI.     Conclusion and Order

Plaintiff’s request for judicial notice is GRANTED.

Plaintiff’s motion for a protective order preventing Defendant from deposing Plaintiff’s current counsel and related production of documents is DENIED WITHOUT PREJUDICE to a showing of good cause after less intrusive means of discovery are used to develop foundational facts which might entitle Defendant to overcome the first two prongs of the Carehouse Convalescent Hospital v. Superior Court and Spectra-Physics v. Superior Court tests.

Plaintiff’s request for monetary sanctions is DEFERRED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] “Each exhibit must be separated by a hard 8 1/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided.”

[2] A copy of the subpoena has not been provided to the Court.

[3] See also Chicago Title Ins. Co. v. Superior Court (California Canadian Bank) (1985) 174 Cal.App.3d 1142, 1153 (counsel had information relevant to his actions in an unprivileged business role that was intertwined with his actions as corporate counsel and was unavailable from another source.)