Case Number: BC651070 Hearing Date: May 09, 2018 Dept: 61

Plaintiff and Cross-Defendant Stuart Lee Zurbick’s Motion for a Protective Order is DENIED. Akhtar is awarded sanctions in the amount of $3,200.00.

Defendant and Cross-Complainant Sahibzada Aasim Akhtar’s Motion to Expand Geographical Limits for Plaintiff’s Deposition and to Compel Him to Appear is GRANTED. Zubrick’s deposition is to take place in Los Angeles County within 30 days of this motion. Akhtar is awarded sanctions in the amount of $2,160.00.

MOTION FOR PROTECTIVE ORDER

“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.” (Code Civ. Proc. § 2024.420, subd. (a).) “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.” (Code Civ. Proc. § 2024.420, subd. (b).)

Zubrick makes the present motion on two grounds: First, he argues that the deposition notices request various financial and medical-accounting documents which are private and constitutionally protected. (Motion at pp. 5–7.) Second, he argues that Akhtar should not be able to depose Robert C. Warren III, John Beach, Brad Webb, Tracy DeFreitas, and Steven Weiss, because they are all either managers or tenants of the property protected from interference by this court’s preliminary injunction. (Motion at pp. 7–8.)

The court notes as an initial matter that Zubrick has not offered any declaration indicating an attempt to meet and confer in compliance with Code of Civil Procedure § 2016.040. Zubrick has only submitted two declarations from Gabriel Courey authenticating the deposition notices at issue and providing evidence of Zubrick’s fees associated with the present motion. Nothing in the declarations evidences an effort to confer with Akhtar about the substance of the present motion. Akhtar has submitted the declaration of his own counsel, who testifies that this is because no such attempt was made. (Bhola Decl. ¶¶ 14–15.) In his reply, Zubrick sets forth his meet and confer efforts in passing. The court finds that a meet and confer, however minimal, did take place.

However, Zubrick’s motion is defective on the merits. Before granting a motion for a protective order, this court must make a finding of “good cause” supporting such an order. (Code Civ. Proc. § 2025.420, subd. (b).) Zubrick has not made such a showing here. Although Zubrick argues that the document requests implicate tax returns, nothing in the requests specifically asks for such documents, and Akhtar in Opposition has stated that such documents are not implicated by the requests. (Opposition at pp. 5–6.)[1] As nothing in the requests indicates a specific intention to uncover information protected by the taxpayer privilege, the court will not read the requests as implicating the same, and neither should the parties. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 721 [discussing privilege against disclosure of tax returns].)

Zubrick also appears to argue that the documents sought implicate privacy concerns, both for the businesses involved and for the medical patients whose billing records may be caught up in the discovery. (Motion at pp. 6–7.) In determining whether privacy interests warrant restricting discovery, the court must perform a balancing of interests: “If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1251.) Zubrick has not made any showing that the businesses and individuals involved in these requests have any particular privacy interest in the records disclosed. As to the personal medical information of various patients, Zubrick has once more offered no evidence that these requests implicate such information; but Zubrick and the parties from whom this discovery is sought may produce such documents with personal medical information redacted.

As to Zubrick’s request to block the depositions of certain tenants and property administrators, the court does not read the preliminary injunction’s language forbidding “[i]nterference with Plaintiff’s . . . tenants, or property management” as prohibiting legitimate discovery. (Courey Decl. Exh. 2.) The court notes that since the present motion was filed, this court has granted Akhtar leave to file a Second Amended Cross-Complaint alleging intentional interference with Akhtar’s relationships with tenants of the relevant properties. (SAXC ¶¶ 39–49.) There is at least some minimal good cause supporting the depositions of these individuals, as well as the requests for documents, such as leases.

Zubrick’s Motion for a Protective Order is DENIED.

A party who unsuccessfully makes or opposes a motion under Code of Civil Procedure § 2025.420 must pay a monetary sanction to the other party, absent substantial justification for their conduct. (Code Civ. Proc. § 2025.420, subd. (h).) Akhtar is entitled to sanctions. He seeks $5,400 for 13.5 hours of attorney work at $400 per hour. (Bhola Decl. ¶ 34.) The court awards Akhtar fees for eight hours of work, or $3,200.

MOTION TO COMPEL DEPOSITION / EXPAND GEOGRAHPIC SCOPE

A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. § 2025.450, subd. (a).)

Depositions must generally “be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence.” (Code Civ. Proc. § 2025.250, subd. (a).) A party may move for a departure from this order for party-witnesses, and the court may grant that motion after considering:

(1)Whether the moving party selected the forum.

(2)Whether the deponent will be present to testify at the trial of the action.

(3)The convenience of the deponent.

(4)The feasibility of conducting the deposition by written questions under Chapter 11 (commencing with Section 2028.010), or of using a discovery method other than a deposition.

(5)The number of depositions sought to be taken at a place more distant than that permitted under Section 2025.250.

(6)The expense to the parties of requiring the deposition to be taken within the distance permitted under Section 2025.250.

(7)The whereabouts of the deponent at the time for which the deposition is scheduled.

(Code Civ. Proc. § 2025.260, subd. (b)(1)–(7).)

The court notes as an initial matter that Akhtar has made an adequate showing of meet and confer efforts before filing this motion. (Code Civ. Proc. § 2025.260, subd. (a); Code Civ. Proc. §2025.450, subd. (b)(2).)

The court first notes that it is unclear whether a motion expanding the geographic scope of depositions is even necessary. Zubrick’s initial Complaint in this action alleged that he was “an individual residing in Los Angeles County.” (Complaint ¶1.) Although Zubrick’s subsequent pleadings appear to have excised this allegation, it does not appear that any substitute allegations for Zubrick’s residence have been pleaded. Akhtar has not provided information as to Zubrick’s current whereabouts, and Zubrick has not offered any such information in opposition to the motion. The court’s only information for Zubrick’s residence thus comes from the allegation in his original Complaint, to the effect that he resides in Los Angeles County. As such, Zubrick’s deposition may be taken within Los Angeles County pursuant to the ordinary provisions Code of Civil Procedure § 2025.250, and this court need not rule on whether an exception is necessary under Section 2025.260.[2]

Akhtar has also shown that Zubrick’s deposition was scheduled for March 28, 2018, but that Zubrick failed to appear. (Bhola Decl. ¶ 23.)

Akhtar’s Motion to Compel Zubrick’s Appearance at Deposition is GRANTED. Zubrick is to appear for deposition in Los Angeles County within 30 days of this order.

A party who successfully makes a motion to compel deposition is entitled to a monetary sanction absent substantial justification for opposing the motion. (Code Civ. Proc. § 2025.450, subd. (g)(1).) Akhtar seeks sanctions in the amount of $5,360, representing 12 hours of attorney work at $400 per hour, a $60 filing fee, and a $500 fee for the Certificate of Non Appearance taken on March 28, 2018. (Motion at p. 10.) The court awards sanctions for four hours of attorney work and the added expenses, leading to an award of $2,160.00.

[1] Akhtar goes on to argue that if tax returns are implicated by the requests, there is adequate reason to compel their disclosure. (Opposition at p. 6.) The court will not adjudicate the necessity of compelling the production of tax returns until a party makes a motion specifically requesting the same.

[2] Because this court has no basis to conclude that Zubrick is not a resident of California, it need not rule on whether Code of Civil Procedure § 1989 prevents taking Zubrick’s deposition in California at all. (See Code Civ. Proc. § 1989 [“A witness, including a witness specified in subdivision (b) of Section 1987, is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service.”]; see also Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1121–23 [holding that no deposition could be taken of nonresident defendant pursuant to geographic exceptions of discovery code in violation of Section 1989].)