Case Number: BC640478 Hearing Date: March 09, 2018 Dept: 74

MARIA MENJIVAR,

Plaintiff,

vs.

PARK WILSHIRE HOMEOWNERS ASSOCIATION, INC.,

Defendant

Case No.: BC640478

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR TERMINATING SANCTION AND PLAINTIFF’S MOTION FOR PROTECTIVE ORDER

TENTATIVE RULINGS: Plaintiff’s motion for protective order and Defendant’s motion for terminating sanction are DENIED. Plaintiff is to appear for deposition at a time and place set by Defendant no later than March 31, 2018. The request for sanctions is denied without prejudice to renewing the request following the successful completion of the deposition.

Background

The complaint alleges Plaintiff was employed by defendant as a custodian. Plaintiff was the only woman employed, and was told women were not employed as they took time off and were trouble. She was denied time off to attend to her sick children and written up for attending jury duty. She injured herself on the job multiple times. She was never provided medical attention or accommodation and was required to return to work. Finally, she retained an attorney and filed a workers’ compensation claim. While she was on medical leave for her injury, beginning in April 2014, defendant denied the injury occurred at work and demanded she return to work. Defendant terminated her in April 2015. Defendant admitted the termination was because she was on medical leave. Plaintiff asked for her personnel file, but was given only a small part of it. The complaint alleges causes of action in: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) wrongful termination in violation of public policy; (4) violation of California Constitution; (5) violation of FEHA; (6) violation of Business and Professions Code section 17200; (7) fraud; (8) intentional infliction of emotional distress; and (9) violation of Labor Code section 1198.5.

Discussion

Plaintiff moves for a protective order and appointment of a discovery referee at Defendant’s expense on the grounds Defendant had improper questions and was oppressive, abusive and harassing. Defendant moves for a terminating sanction dismissing the complaint or alternatively staying action until Plaintiff complies with January 3, 2018 order allowing Defendant to take her deposition.

Both of these motions are brought on the contention that opposing counsel engaged in misuse of the discovery process in the deposition.

General Principles

The court in Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal. App. 4th 1006, 1013, explained the parameters of discovery:

“For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement . . . .’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal. App. 4th 1539, 1546 [39 Cal. Rptr. 2d 896], quoting Weil & Brown, Cal. Practice Guide, Civil Procedure Before [**120] Trial (The Rutter Group 1994) P 8:66.1, p. 8C-1.)”

The court then explained when objections were proper during depositions:

Moreover, even were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition. Code of Civil Procedure section 2025, subdivision (m), governing deposition objections, divides objectionable questions into three categories. Subdivision (m)(1) applies to questions delving into privileged areas and provides that to protect privileged information, “a specific objection to its disclosure” must be “timely made during the deposition.” Subdivision (m)(1) thus sanctions use of an objection coupled with an instruction not to answer in order to protect privileged information from disclosure.

Code of Civil Procedure section 2025, subdivision (m)(2) applies to questions containing errors or irregularities that might be cured if promptly brought to counsel’s attention, such as errors in the form of the question. Objection to these types of missteps is “waived unless a specific objection to them is timely made during the deposition.” Subdivision (m)(2) makes clear that counsel should not instruct the deponent not to answer such objectionable questions, expressly stating that “unless the objecting party demand the taking of the deposition be suspended to permit a motion for a protective order under subdivision (n), the deposition shall proceed subject to the objection.” [ “Code of Civil Procedure section 2025, subdivision (m)(3) governs inquiry into irrelevant and immaterial matters and provides: “Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition.” (Italics added.) In other words, the deponent’s counsel should not even raise an objection to a question counsel believes will elicit irrelevant testimony at the deposition. Relevance objections should be held in abeyance until an attempt is made to use the testimony at trial.

Code of Civil Procedure section 2025, subdivision (n) goes on to state that the deposition may be suspended if “any party attending the deposition or the deponent demands the taking of testimony be suspended to enable that party or deponent to move for a protective order on the ground that the examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party.” Deposing counsel’s insistence on inquiring into irrelevant areas could justify suspension under this standard, but only if it reaches the point where it could legitimately be said that counsel’s intent was to harass, annoy, embarrass, or oppress. Taken as a whole, these provisions clearly contemplate that deponents not be prevented by counsel from answering a question unless it pertains to privileged matters or deposing counsel’s conduct has reached a stage where suspension is warranted. The fact that suspension is available only where an interrogation into improper matters reveals an underlying purpose to harass, annoy, etc., indicates that witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process.” (Id. at pp. 1014-1015; code section renumbered as section 2025.460.)

Attendance at Depostion

Defendant is entitled to attend the deposition, which as a corporation would mean attendance by an agent of the corporation. Currently, it is not unusual to have both a videographer and court reporter at the deposition, which is expressly permitted. The attorney for the party who noticed the deposition conducts the deposition. Plaintiff objected that there were too many persons at the deposition, which was oppressive and intimidating for plaintiff.

The videographer and court reporter are neutral participants in a deposition, which Plaintiff’s counsel could certainly explain to her client.

Defendant’s representative and attorney are proper attendees of the deposition. The only additional person would be Kulik’s associate. It appears from the deposition that the associate, Mark Talise, did not ask Plaintiff questions or actively participate in the deposition. Plaintiff has not explained how his mere presence was oppressive and intimidating.

Objections

Plaintiff’s counsel, Rand-Lewis, made numerous objections, based on all categories in section 2025.460, and instructed her client not to answer the questions. The instruction not to respond to the questions was improper, except for the objections based on privilege.

The arguments by both counsel were inappropriate. It became apparent relatively soon in the deposition that the attorneys were not going to resolve their issues. Rather than arguing, or making extensive statements to support the objection and instruction not to respond, plaintiff should have responded to those questions where the objection was not based on privilege and the deposition should have continued.

Questions

Plaintiff contends that the questions were irrelevant and asked only to harass and oppress her. The court disagrees. Plaintiff is claiming she has a work-related disability. Questions as to how she felt physically during her employment, who she told of her injury, what she said about the cause of her injury, and what doctors she saw during her employment are reasonably calculated to lead to admissible evidence.

Plaintiff’s postings on social media which related to her employment are also reasonably calculated to lead to admissible evidence, particularly if the postings were contemporaneous with the time she is claiming she had a disability.

Neither party provided the Court with a separate statement of disputed questions, and the court is not inclined to address specific questions in this motion. The court does note that, as Defendant stated, Plaintiff has more claims than just disability discrimination and Defendant is entitled to ask questions which may lead to admissible evidence regarding each of Plaintiff’s claims.

Discovery Referee

The request for the appointment of a discovery referee is denied. Counsel should be able to complete the deposition using the guidelines the Court has provided.

CONCLUSION

The motion for terminating sanctions is denied. “A discovery sanction may not place the party seeking discovery in a better position than it would have been in if the desired discovery had been provided and had been favorable.” (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal. App. 4th 323, 332.) A terminating sanction would place defendant in a better position than completion of the deposition. Defendant should be able to complete the deposition.

The motion for a protective order is denied. The court does not find Defendant and its attorneys’ conduct was aggressive, oppressive or harassing.

Plaintiff is to appear for deposition at a time and place set by Defendant no later than March 31, 2018.

SANCTIONS

The request for sanctions is denied without prejudice to renewing the request following the successful completion of the deposition.