2016-00204595-CU-PA

Kenneth Lewis vs. Bernardo Raul Gutierrez

Nature of Proceeding: Motion for Protective Order

Filed By: Sowatsky, Eric M.

Defendant Bernardo Raul Gutierrez’ Motion for Protective Order is denied.

This motion was initially set for hearing on September 6, 2018. No opposition was filed to that motion. At oral argument, the Court continued the matter to this date to allow the plaintiff to file an opposition to the motion for protective order. The Court has reviewed the opposition and reply.

Defendant seeks to prevent the deposition of his wife, Jacqueline Gutierrez, from going forward.

This action arises from a September 24, 2016 accident. Plaintiff alleges he was crossing the street in a wheelchair when the tractor-trailer Bemardo Raul Gutierrez, Jr.’s (“Mr. Gutierrez”) was driving, in the course of his employment with CR. England, Inc., struck the wheelchair. Jacqueline Gutierrez (“Mrs. Gutierrez”) is, and was at the time of the accident, the wife of Mr. Gutierrez. (Gutierrez Decl., 3.) In early July of 2018, Plaintiff served Mrs. Gutierrez with a deposition

subpoena. (See subpoena attached as Exhibit A, and Sowatsky Decl., ¶ 2.) Defendant wishes to prevent Plaintiff from eliciting confidential marital communications from Mrs. Gutierrez, pursuant to his privilege under Evidence Code section 980. (Gutierrez Decl., ¶¶ 4-7.)

Code of Civil Procedure section 2025.420 provides for a protective order preventing or limiting the scope of a deposition:

(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…
(5) That the deposition be taken only on certain specified terms and conditions …

(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain matters

Mr. Gutierrez has a statutory privilege to prevent disclosure of confidential marital communications. Evidence Code section 980 provides:

Subject to Section 912 and except as otherwise provided in this article, a spouse (or his or her guardian or conservator when he or she has a guardian or conservator), whether or not a party, has a privilege during the marital or domestic partnership relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or her and the other spouse while they were spouses.

“The purpose of the spousal testimony privilege is to preserve marital harmony.” People v. Sinohui (2002) 28 Cal.4th 205, 213. The privilege “protects marital privacy” and “promotes the socially beneficial institution of marriage.” Id. at 211. Marital confidence is “regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.” Wolfle v. United States (1934) 291 U.S. 7, 14. “A communication between husband and wife is presumed to be confidential and the burden is on the opponent of the privilege to prove otherwise.” People v. Carter (1973) 34 Cal.App.3d 748, 752. See also Evid. Code § 917(a) (“If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of

the …marital or domestic partnership, … the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.”). The privilege and confidential presumption apply to confidential communications in this case because Mr. and Mrs. Gutierrez are married and Mr. Gutierrez wishes to assert his privilege. (See Gutierrez Decl., ¶¶ 3-7.)

Defendant contends that the Plaintiff can obtain the information less intrusively from other sources.

In opposition, plaintiff points out that the privilege does not apply where the marital communication is not intended to be confidential. See People v. Bogle(1995) 41 CA4th

770. Second, the privilege does not apply to acts of a spouse, i.e., Mr. Gutierrez conduct observed by his wife. See People v. Dorsey (1975) 46 CA3d 706; see also People v. Keller (1958) 15 CA2d 419.

Therefore, although the confidential communications themselves may be privileged, plaintiff is entitled to depose Ms. Gutierrez and to question her about non-privileged communications or conduct she may have observed. Defendant has not met his burden to show good cause as to why the Court should grant a protective order to completely preclude the deposition. There has been no showing of unwarranted annoyance, embarrassment, oppression, or undue burden or expense with respect to questioning the witness on issues other than confidential communications with her husband. If the witness is questioned about a confidential communication, any appropriate objection may be made at the deposition.

Therefore, the motion for protective order to prevent the deposition of Jacqueline Gutierrez is denied.

The deposition shall go forward at a date, time and place determined after meeting and conferring with the parties and the witness, but in any event to take place within 30 days of the date of this hearing, unless otherwise mutually agreed.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.