Lawzilla Additional Information: Lawzilla believes the attorney referenced as “Pham” in the court’s order is Ashley Pham

Case Number: BC677855 Hearing Date: June 06, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CRYSTAL PLACE

Plaintiff,

vs.

THOM HOLMES, and DOES 1 to 100,

Defendant(s).

Case No.: BC677855

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL DEFENDANT THOM HOLMES TO RESPOND TO DEPOSITION QUESTIONS

Dept. 3

1:30 p.m.

June 6, 2019

Plaintiff’s Motion to Compel Defendant Thom Holmes to Respond to Deposition Questions is GRANTED. Plaintiff’s request for sanctions is GRANTED against Defendant Thom Holmes and Defendant’s counsel of record, Cullins & Grandy LLP, jointly and severally, in the amount of $2,510.00. Sanctions are to be paid within 45 days of notice of this Order.

I. Background

Plaintiff Crystal Place (“Plaintiff”) filed the Complaint on September 29, 2017 against Defendant Thom Holmes (“Defendant”) after allegedly sustaining injuries from a vehicle collision that took place on December 14, 2015.

Plaintiff filed the subject Motion to Compel Defendant Thom Holmes to Respond to Deposition Questions on April 10, 2019. Plaintiff moves to compel deposition answers from Defendant pursuant to Code of Civil Procedure Section 2025.480 on grounds that Defendant refused to answer several questions at Defendant’s February 27, 2019 deposition upon the instruction of counsel. Plaintiff also seeks sanctions in the amount of $8,285.00 and the costs of the second videotaped deposition against Defendant and Defendant’s counsel. Defendant opposes the motion on grounds that Plaintiff seeks to compel responses to deposition questions that are irrelevant to the action, harassing, and invasive of Defendant’s privacy rights because the questions relate to Defendant’s business ventures and personal associations. Defendant requests for sanctions in the amount of $1,400.00 against Plaintiff and Plaintiff’s counsel.

II. Procedural Issues

The Court notes that Defendant’s Opposition is untimely. Code of Civil Procedure Section 1005 subdivision (b) provides that an opposition must be filed with the court and served upon each party at least nine court days before the hearing. The original hearing on this motion was set for May 30, 2019. Defendant filed its opposition on May 23, 2019. The motion was continued to June 6, 2019 at the May 15, 2019 Informal Discovery Conference (“IDC”). The Court will exercise its discretion to consider the merits of Defendant’s Opposition given that Plaintiff was able to file a timely reply brief.

III. Evidentiary Objections

Defendant’s objection to the entirety of the Declaration of Plaintiff Crystal Place is OVERRULED.

IV. Compel Answers to Deposition Questions

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action.” (Code Civ. Proc. § 2025.010.) “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Id., § 2025.480(a); see also Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015 n.3 (the only proper basis to instruct a deponent to not answer a question is an objection based upon a privilege or manifestly irrelevant questions or questions designed only to harass). “If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc. § 2025.480(i).) Failure to obey an order may be considered contempt of court and could subject a party to the action to issue, evidentiary, or terminating sanctions as well as monetary sanctions. (Id., § 2025.480(k).) “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration.” (Id., § 2025.480(b).)

A. Meet and Confer

A motion to compel answers to deposition questions must be accompanied by a meet and confer declaration which states facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Id., §§ 2016.040, 2025.480(b).) The Court notes that Plaintiff has demonstrated a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. While counsels for Plaintiff and Defendant expressed their positions in the heat of the deposition, Plaintiff’s counsel also attempted to resolve the issues presented in this motion through three meet and confer letters sent to Defendant’s counsel. (See Turner Decl., ¶¶ 9-10, Exhs. A-C.)

B. Questions Pertaining to Defendant’s Employment, Licenses, and Titles

Plaintiff moves to compel Defendant to answer deposition questions regarding Defendant’s employment, licenses, and titles which Plaintiff claims Defendant, upon the instruction of counsel, improperly refused to answer.

The line of questioning at issue is the following:

(Page 62, line 9 – Page 64, line 10)

Q. So is that a yes or no? Do you ever introduce yourself as Dr. Holmes?

A. Have I ever introduced myself as Dr. Holmes? Yes, I have.

Q. In what context?

A. I don’t know the relevancy of that to what we’re doing here, quite candidly; but I — I have introduced myself as Dr. Holmes in the context of –of — of introducing myself in certain settings.

Q. Like what kind?

MS. PHAM: Objection. Relevance.

THE WITNESS: I don’t want to say, you know. That has nothing to do with why we’re here. Yeah.

BY MR. TURNER:

Q. She hasn’t instructed you not to answer; so I’m entitled to your answer.

MS. PHAM: Objection. It’s privacy as well. You don’t have to answer.

…

Q. So I’ll ask you the question. Do you go by Dr. Holmes in any business context?

MS. PHAM: So same objections. You don’t have to answer.

….

“The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “The party seeking information may raise in response whatever legitimate and important countervailing interest disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Id.)

Defendant argues that he holds a legally protected privacy interest as it pertains to his unrelated personal associations and affiliations as well as a right to privacy in his business holdings and ventures. (Opp., 2:28-3:3.) First, the Court does not find that Plaintiff’s questions regarding the contexts in which Defendant uses his title as “Dr.” intrudes upon Defendant’s privacy rights in his personal associations and affiliations. The privacy of personal association is protected by the First and Fourteenth Amendments of the United States Constitution from unwarranted governmental intervention or interference with an individual’s choice to enter into and maintain intimate human relationships. (See Pacific-Union Club v. Superior Court (1991) 232 Cal.App.3d 60, 70-71.) Defendant has otherwise failed to cite any legal authority establishing a right to privacy from questions regarding an individual’s business holdings and ventures.

Furthermore, Defendant does not establish that any invasion into Defendant’s private affairs through Plaintiff’s line of questioning would threaten a “serious” invasion of privacy. (See Williams, 3 Cal.5th at 552; see also Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370 (constitutional rights or privacy “protects the individual’s reasonable expectation of privacy against a serious invasion”).) For example, Judicially-approved From Interrogatories 2.6 and 2.7 inquire the past and present employment, as well as the academic achievements, of a responding party. Defendant fails to establish how further questioning into Defendant’s responses to such interrogatories – namely, Defendant’s employment and use of his title as “Dr.” – would pose a sufficiently serious invasion of privacy to bar any discovery.[1] A balancing of the interests asserted by Defendant against the broad right to discovery favors disclosure of the information sought by Plaintiff through Defendant’s deposition.

Defendant’s counsel’s instruction for Defendant not to answer Plaintiff’s questions on the basis of relevancy are also improper. The scope of discovery is broader than the admissibility of evidence at trial. (Code Civ. Proc. § 2017.010 (party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter . . . appears reasonably calculated to lead to the discovery of admissible evidence); see also Williams 3 Cal.5th 531, 540-41 (discovery statutes should be construed liberally in favor of discovery).) Any objections of relevancy may be preserved for trial at the deposition, but counsel cannot blatantly coach or instruct the witness not to answer.

C. Questions Pertaining to Prior Litigation Involving Defendant

Plaintiff moves to compel Defendant to answer questions regarding prior litigation involving Defendant.

The questions at issue are as follows:

(Page 74, line 20 – Page 75, line 19)

Q. So in those cases that you estimate that you’ve been involved in between 1 and 99, were you ever a defendant? Were you ever the one getting sued, or were you just initiating the suit?

MS. PHAM: I’m just going to object that it violates his privacy.

MS. PHAM: And you don’t node [sic] to answer.

MR. TURNER: Counsel, it’s a lawsuit. It’s public record. How is that private?

MS. PHAM: It’s irrelevant to the subject matter.

….

Again, the burden is on Defendant as the party asserting the privacy right to establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Williams, 3 Cal.5th at 552, citing Hill, 7 Cal.4th at 35).

Here, Defendant fails to establish a legally protected privacy interest in the prior lawsuits in which he was a named party. While Defendant argues that he holds a right to privacy in his private business dealing and property ownership/management, the Court is again not convinced that Plaintiff’s questions invades any information regarding Defendant’s private business dealings or property ownership – Plaintiff merely asks whether Defendant’s involvement in any prior lawsuits.

Furthermore, Defendant fails to show how any potential inquiry into Defendant’s involvement in prior lawsuits poses a threat of “serious” invasion of any reasonable expectation of privacy. Judicially-approved Form Interrogatories 11.1 and 11.2, for example, allow parties to inquire basic information as to whether a party was involved in any prior lawsuits in the past 10 years. Defendant does not otherwise cite to any applicable legal authority supporting the proposition that Plaintiff is barred from asking questions about Defendant’s involvement in prior lawsuits.

Accordingly, the Court finds that counsel’s instructions to Defendant not to answer questions about his involvement in prior lawsuits to be improper. If, as Defendant argues in its opposition, Defendant was not a named defendant in prior lawsuits, Defendant should be allowed to state so on the record. Any objections may be preserved for trial at the deposition, but counsel cannot blatantly coach or instruct the witness not to answer.

D. Questions Pertaining to Defendant’s Business Card

Plaintiff moves to compel Defendant to answer questions regarding Defendant’s business card which was handed to Plaintiff by Defendant at the scene of the vehicle collision.

The questions at issue are as follows:

(Page 76, line 11 – Page 77, line 20; Page 80, line 2 – Page 85, line 18)

…

Q. Moving to the top right of the card, “THL Company, LLC.” Is that — is that a company you work for, or is that your company?

A. No, that was a company I was affiliated with at the time.

….

Q. So this company that bears your initials, were you the owner of this company?

A. I was.

Q. Okay. Were you the sole owner?

A. I was sole owner.

Q. What year did you create this company?

A. I don’t recall.

MS. PHAM: I’m just going to place a belated objection. This violates privacy.

BY MR. TURNER:

Q. Was it created in the 1970s or the 80s or the 90s or the 2000s?

MS. PHAM: Same objections. You don’t — you don’t need to answer.

….

Q. Did you ever register with the State of California?

MS. PHAM: Same objections.

BY MR. TURNER:

Q. I didn’t hear any instruction not to answer; so I’m expecting your answer.

MS. PHAM: Same objections. You don’t have to answer.

THE WITNESS: You just did.

….

Q. Okay. Were there any other individuals that were employees of TLH Company at any time other than you?

MS. PHAM: Same objection. You don’t need to answer.

….

Q. Here, where it says on the top right, “International Affairs,” what does that mean?

MS. PHAM: Same objection. You don’t need to answer.

MR. TURNER: Well, I’m just asking what international affairs means; so I’m not sure what the objection is, Counsel.

MS. PHAM: It’s related to his business. So I’m just going to object, and you don’t have to answer.

MR. TURNER: What’s the objection, Counsel.

MS. PHAM: Privacy.

….

Q. It also says “Financial Consultants. What – – what does that mean when you — when you chose to put those words there? What did you mean by them?

MS. PHAM: Same objections. You don’t need to answer.

….

Q. And if I ask any follow-up questions about, for instance, international affairs an financial consultants, are you going to give the same objection?

MS. PHAM: Yes.

….

Q. Do you have any licenses associated with your work at TLH Company?

MS. PHAM: Same objection. You don’t need to answer.

….

Q. Who is Thom Dully (spelled phonetically).

MS. PHAM: Same objections.

MR. TURNER: I’m just asking who Thom Dully is. It’s got nothing to do with his business card.

MS. PHAM: It’s on this business card.

Q. Do you know who Thom Dully is?

MS. PHAM: The name is on this business card.

MR. TURNER: There’s an e-mail address. I don’t know if that’s a name.

BY MR. TURNER:

Q. I’m just asking, is there a person named Thom Dully that you know?

MS. PHAM: Same objection. (Unintelligible).

MR. TURNER: You’re instructing him not to answer where he knows a person named Thom Dully?

MS. PHAM: Yes.

MR. TURNER: On what basis?

MS. PHAM: Privacy.

….

The Court finds that Defendant, again, fails to justify his objections and refusal to answer on privacy grounds. Defendant argues in the Separate Statement that Defendant chose to hand Plaintiff a business card containing the above-referenced information as required by California law, and that by so doing, Defendant did not waive his right to privacy. Even so, the burden is on Defendant to establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Williams, 3 Cal.5th at 552, citing Hill, 7 Cal.4th at 35). Defendant fails to adequately do so.

As an initial matter, the Court does not find Plaintiff’s questions about the Defendant’s employment, purported business at the time of the incident, and employees of the business to intrude upon Defendant’s asserted privacy rights to his personal finances and associations. Even so, Defendant fails to set forth any facts supporting a finding that the information sought “seriously” intrudes upon any reasonable expectation of privacy. The fact that Defendant himself provided Plaintiff with the information on his business card about which Plaintiff was inquiring weighs against a finding that Defendant’s expectation of privacy in the information was reasonable. Accordingly, counsel’s instruction to Defendant not to answer Plaintiff’s questions are improper on this basis. Any further objections may be preserved on the record at the deposition, but counsel cannot blatantly coach or instruct the witness not to answer.

V. Monetary Sanctions

The court shall impose a monetary sanction against any person, party, or attorney that unsuccessfully makes or opposes a motion to compel an answer or production, unless the one subject to the sanction acted with substantial justification or other circumstances make the imposition of sanctions unjust. (Code Civ. Proc. § 2025.480(j).)

Plaintiff seeks sanctions against Defendant and his attorney of record in the amount of $8,285.00 based upon Plaintiff’s counsel’s rate of $350.00 per hour and (1) 19.0 hours meeting and conferring, researching, and drafting the motion; (2) 4.5 hours drafting a Reply and appearing at the IDC and hearing on this motion; and (3) the $60.00 filing fee. (Turner Decl., ¶¶ 11-14.)

Given the straight-forward nature of the motion and the issues presented, the Court finds Plaintiff’s request to be excessive. Rather, the Court finds that monetary sanctions in the amount of $2,450.00 plus the $60.00 filing fee to be reasonable.

VI. Conclusion and Order

Accordingly, Plaintiff’s motion to compel Defendant Thom Holmes to answer deposition questions is GRANTED. Defendant Thom Holmes is ordered to appear for deposition within 30 days of notice of this Order, unless the parties stipulate to another date. Plaintiff is permitted to question Mr. Holmes only on the matters he refused to answer and related follow-up questions. Questions as to other unrelated matters are prohibited.

Plaintiff’s request for sanctions is GRANTED against Defendant Thom Holmes and Defendant’s counsel of record, Cullins & Grandy LLP, jointly and severally, in the amount of $2,510.00. Sanctions are to be paid within 45 days of notice of this Order.

Plaintiff is to give notice.

Parties who intend to submit on this tentative must send an email to the court at SSCDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

[1] The Court further notes that Defendant incorrectly argues that Plaintiff must meet a “compelling interest” standard for disclosure against an asserted privacy interest. (See Williams, 3 Cal.5th at 557 (disapproving prior cases requiring a party seeking discovery of privacy information to always establish a compelling interest or compelling need, without regard to the considerations articulated in Hill).)