Case Number: BC700224 Hearing Date: October 25, 2019 Dept: 31

MOTION FOR ORDER DISQUALIFYING COUNSEL, AND FOR EVIDENTIARY SANCTIONS IS DENIED.

Background

On April 3, 2018, Plaintiff Maxine Hughes brought the instant action against Defendants Restore Health and Wellness Center, LLC; Eric Leon; and Does 1 through 50. On February 27, 2019, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for:

Discrimination Based on Race and/or Color (Government Code § 12940 et seq.);

Harassment Based on Race and/or Color (Government Code § 12940 et seq.);

Sexual Harassment (Government Code § 12940 et seq.);

Failure to Prevent Harassment and Hostile Work Environment (Government Code § 12940 et seq.);

Retaliation (Government Code § 12940 et seq.); and

Constructive Wrongful Termination in Violation of Public Policy.

Legal Standard

California Code of Civil Procedure section 128(a)(5) authorizes the Court to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it. This authority necessarily includes disqualifying an attorney. (People ex. rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) Cal. 4th 1135, 1145.) The issue of disqualification ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility. (Id.) However, the paramount concern must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar and the recognized and important right to counsel of one’s choosing must yield to considerations of ethics that run to the very integrity of our judicial process. (Id.)

In ruling on a motion to disqualify, the court should weigh: (1) the party’s right to counsel of choice; (2) the attorney’s interest in representing a client; (3) the financial burden on a client of change of counsel; (4) any tactical abuse underlying a disqualification motion; and (5) the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel. (Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126.) Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. (Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113.) In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. (Id.)

Evidentiary Objections

Defendants submit multiple objections to the Declaration of Edwin Pairavi. The objections are immaterial to the Court’s disposition. Accordingly, the Court declines to rule on them.

Discussion

Plaintiff moves for an order (1) disqualifying Defendants’ counsel of record, The Palmer Darroll Law Offices and Eileen P. Darroll (hereinafter “Darroll”); (2) granting terminating sanctions against Defendants, or in the alternative, evidentiary sanctions as to financial records belonging to Plaintiff improperly obtained by Defendants; and (3) granting monetary sanctions against Defendants and their counsel of record jointly and severally.

Motion to Disqualify

Standing

“Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. [Citation.] A “standing” requirement is implicit in disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney. [Citation.] . . .

[A]bsent an attorney-client relationship, the moving party must have an expectation of confidentiality. For purposes of a disqualification motion, “[s]tanding arises from a breach of the duty of confidentiality owed to the complaining party, regardless of whether a lawyer-client relationship existed.” [Citation.] Thus, some sort of confidential or fiduciary relationship must exist or have existed before a party may disqualify an attorney predicated on the actual or potential disclosure of confidential information. [Citations.]” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356.)

Relying on Colyer v. Smith (C.D. Cal. 1999) 50 F.Supp.2d 966, the Second District Court of Appeal held: “[A] non-client might have standing to bring a disqualification motion. A non-client must establish a “personal stake” in the motion to disqualify opposing counsel that is sufficient to satisfy the standing requirements of Article III of the United States Constitution. [Citation.] “Generally, only the former or current client will have such a stake in a conflict of interest dispute.” [Citation.] But, where the ethical breach is “manifest and glaring” and so “infects the litigation in which disqualification is sought that it impacts the moving party’s interest in a just and lawful determination of [his or] her claims” [citation], a non-client might meet the standing requirements to bring a motion to disqualify based upon a third-party conflict of interest or other ethical violation. [Citations.]” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1357-1358.)

“Where the ethical breach is so severe that it “obstructs the orderly administration of justice,” the party who finds his claims obstructed has standing.” (Colyer v. Smith (C.D. Cal. 1999) 50 F.Supp.2d 966, 972.)

Defendants oppose the motion to disqualify first arguing that Plaintiff does not have standing to bring the motion. Defendants assert that Defendants’ counsel has never had a prior attorney-client relationship with Plaintiff. Defendants contend that there is no confidential or fiduciary relationship between Plaintiff and Defendants’ counsel.

In reply, Plaintiff argues that she has standing to bring the instant motion because Plaintiff has a legally cognizable non-hypothetical privacy interest in her private financial records. Plaintiff asserts that in determining whether this breach of Plaintiff’s privacy rights is “so severe that it obstructs the orderly administration of justice,” the Court should observe that this is not an isolated incident, but rather, constitutes but one example of a pattern of egregious and inappropriate conduct by Defendants and Darroll that has permeated this action from its inception.

The Court finds that Plaintiff does not have standing to move to disqualify Darroll, as the alleged ethical breaches are not so severe that it obstructs the orderly administration of justice. Plaintiff’s motion is based on multiple alleged ethical violations, the first of which alleges that Darroll procured paychecks issued by Plaintiff’s subsequent employers directly from third parties without issuing a subpoena pursuant to Code of Civil Procedure sections 1985.6(b) and 1985.3(b). Plaintiff further alleges that Darroll violated Rules of Professional Conduct 4.3 and 3.4 by telling unrepresented, percipient witnesses to not cooperate with Plaintiff’s attempts to gather facts and by providing those individuals with legal advice.

First, as to the allegation that Darroll acquired Plaintiff’s financial records through unlawful means, the Discovery Act is not the exclusive framework for dealing with evidence in a legal action. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1419.) “[T]hroughout the Discovery Act, “may” is quite obviously permissive. It means that a party who wants to can conduct discovery. If he doesn’t want to, he doesn’t have to. . . . [T]here are situations where documents can be obtained without the other party’s cooperation (for example, under the Public Records Act or from a friendly third party or by hiring a trained investigator or on the internet).” (Pullin v. Superior Court (2000) 81 Cal.App.4th 1161, 1164.) The procurement of documents outside of the discovery process is allowable so long as the information is obtained in a lawful fashion. (See Id. at 1165.) Here, Darroll was not required to issue a subpoena to obtain the information sought; if a friendly third party was willing to part with the information, Defendants were free to procure the information through that means.

Further, Plaintiff’s financial information was put at issue by Plaintiff’s complaint wherein she alleges that she “has been harmed in that she has suffered and will continue to suffer actual, consequential, and incidental financial losses, including without limitation loss of income, salary and benefits,” “Plaintiff has suffered and continues to suffer, substantial losses of earnings,” and the FAC seeks a “money judgment representing compensatory damages including past and future loss of earning, wages, tips.” (FAC ¶ 27-28, 37-38, 47-48, 56-57, 66-67, 73-74; FAC Prayer ¶ 1.) Defendants are entitled to information that would allow them to defend against the direct allegations in the FAC.

As to Plaintiff’s allegations that Darroll violated Rules of Professional Conduct 4.3 and 3.4 by telling unrepresented, percipient witnesses to not cooperate with Plaintiff’s attempts to gather facts and by providing those individuals with legal advice, Plaintiff’s arguments are directly contradicted by the Declaration of Andrew Levander. Levander attests to the fact that Darroll told him that he was “under no obligation to speak to her, or to opposing counsel, unless they served [him] with a subpoena to appear at a deposition” and that “she never instructed [him] not to speak to opposing counsel.” (Levander Decl. ¶ 2.) Levander further states that he “had decided [he] did not want to talk with [Plaintiff’s counsel] because of the way he was harassing [him].” (Levander Decl. ¶ 3.)

Nothing before the Court indicates that Darroll has violated any Rules of Professional Conduct or the Discovery Act. Accordingly, there is no ethical breach that is so severe that it obstructs the orderly administration of justice such that it confers standing on Plaintiff.

Based on the foregoing, Plaintiff’s motion to disqualify is DENIED for lack of standing.

Motion for Terminating, Evidentiary, and Monetary Sanctions

Where a party willfully disobeys a discovery order, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d).) “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) Evidence or issue sanctions may only be imposed after parties have violated discovery orders or where there are other exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1428.) California Rules of Court Rule 3.1345(a)(7) requires that a motion “[f]or issue or evidentiary sanctions” be accompanied by a separate statement.

Additionally, “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process.” (CCP § 2023.030.)

As noted above, the Court finds that there has been no abuse or violation of the Discovery Act and there is no argument that Defendants have violated a discovery order. Further, no separate statement has been submitted in support of Defendants’ motion for issue or evidentiary sanctions.

Based on the foregoing, Plaintiff’s motion for terminating, evidentiary, and monetary sanctions is DENIED. The Court further declines Defendants’ request to impose sanctions against Plaintiff and her counsel.

Conclusion

Plaintiff’s motion to disqualify counsel and for evidentiary and monetary sanctions is DENIED in its entirety.

MOTION TO COMPEL PRODUCTION OF DOCUMENTS & APPEAR FOR FURTHER DEPOSITION

Background

On April 3, 2018, Plaintiff Maxine Hughes brought the instant action against Defendants Restore Health and Wellness Center, LLC; Eric Leon; and Does 1 through 50. On February 27, 2019, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for:

Discrimination Based on Race and/or Color (Government Code § 12940 et seq.);

Harassment Based on Race and/or Color (Government Code § 12940 et seq.);

Sexual Harassment (Government Code § 12940 et seq.);

Failure to Prevent Harassment and Hostile Work Environment (Government Code § 12940 et seq.);

Retaliation (Government Code § 12940 et seq.); and

Constructive Wrongful Termination in Violation of Public Policy.

Defendants move for an order compelling Plaintiff to produce all documents responsive to the Request for Production of Documents served with the Notice of Taking Deposition of Plaintiff and compelling the further deposition of Plaintiff Maxine Hughes.

Legal Standard

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(Code of Civ. Proc., § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(Code of Civ. Proc., § 2025.280, subd. (a).)¿¿

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(Code of Civ. Proc., § 2025.450, subd. (a).)¿The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿(Code of Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code of Civ. Proc., § 2025.450(g)(1).)

Discussion

Defendants argue that on July 12, 2019, Defendants caused a Notice of Deposition of Plaintiff and Request for Production of Documents to be served on Plaintiff’s counsel. (Darroll Decl., Exh. A.) Defendants assert that on July 22, 2019, Defendants’ served an Amended Notice of Taking of Deposition of Plaintiff and Request for Production of Documents. (Darroll Decl., Exh. B.) Defendants contend that their counsel never received any written objections to either the Notice of Deposition or Amended Notice from counsel for Plaintiff. (Darroll Decl. ¶ 4.)

Defendants argue on August 8, 2019, Plaintiff appeared for her deposition without any documents. (Darroll Decl. ¶ 5.) Defendants assert that at the deposition, Plaintiff admitted that she had documents in her possession that were responsive to the documents requested in the Notice of Taking Deposition. (Darroll Decl. ¶ 5; Exh. C.) Defendants contend that Plaintiff also stated that she had never seen the Amended Notice of Deposition before. (Darroll Decl. ¶ 5; Exh. C.) Defendants argue that as shown in the accompanying Separate Statement, each category of documents requested relates directly to the allegations in Plaintiff’s complaint. Defendants assert that the Court should order Plaintiff to produce all responsive documents without objection and to appear for another session of her deposition so Defendants’ counsel can question her on those documents and on all related matters.

Adequate Notice

California Rules of Court Rule 5.94(a) provides that “[t]he court, on its own motion or on application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the times specified in Code of Civil Procedure section 1005.”

Plaintiff first opposes the instant motion arguing that the Court should deny Defendants’ motion because Defendants have failed to provide proper statutory notice of sixteen Court days. Plaintiff asserts that Defendants’ ex parte application advancing the hearing date was heard on October 8, 2019. Plaintiff contends that as a result, pursuant to CCP § 1005, the earliest date Defendants’ motion could be heard is October 31, 2019. Plaintiff argues that the current hearing date has provided Plaintiff and the Court with twelve court days’ notice and given Plaintiff only four days to oppose Defendants’ motion.

In reply, Defendants argue that Plaintiff’s failure to file any opposition to the ex parte application is a consent to the ruling. Defendants assert that Plaintiff appeared at the ex parte hearing on the request to set the hearing date on October 25, 2019. Defendants contend that Plaintiff failed to file any opposition to that motion and therefore consented to the briefing schedule, waiving any right to complain.

The Court finds Plaintiff has been provided adequate notice of the instant motion. Pursuant to CRC Rule 5.94(a), on October 8, 2019, the Court granted Defendants’ ex parte application to advance hearing date on motion to compel. The hearing date for the instant motion was thus not required to be set at least sixteen court days after the granting of the ex parte application. Accordingly, the Court considers the motion on its merits.

Timeliness of Deposition, Timeliness of Motion, and Mootness

Code of Civil Procedure section 2025.270 provides in relevant part:

(a) An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.

(b) Notwithstanding subdivision (a), in an unlawful detainer action or other proceeding under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3, an oral deposition shall be scheduled for a date at least five days after service of the deposition notice, but not later than five days before trial.

(c) Notwithstanding subdivisions (a) and (b), if, as defined in Section 1985.3 or 1985.6, the party giving notice of the deposition is a subpoenaing party, and the deponent is a witness commanded by a deposition subpoena to produce personal records of a consumer or employment records of an employee, the deposition shall be scheduled for a date at least 20 days after issuance of that subpoena.

(Code Civ. Proc., § 2025.270(a)-(c).) Further, Section 2025.410 provides:

Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

(Code Civ. Proc., § 2025.410(a).)

Plaintiff next argues that Defendants’ motion should be denied because Defendants’ Requests for Production of Documents served in conjunction with the Notice of Deposition were untimely and Plaintiff was not required to respond. Plaintiff asserts that pursuant to Section 2025.270(c), Defendants’ deposition notice in which documents were requested was required to be set at least twenty days after the issuance of the notice. Plaintiff contends that Defendants noticed the deposition by mail on July 22, 2019, and the deposition took place on August 8, 2019. Plaintiff argues that Defendants failed to properly notice the deposition with requests for production as only seventeen days elapsed from the date the notice was sent.

Plaintiff further asserts that Defendants’ motion to compel deadline has long passed, which is a jurisdictional bar to this motion. Plaintiff contends that a motion to compel must be brought within forty-five days of receipt pursuant to Section 2030.300(c). Plaintiff argues that here, Defendants previously propounded substantively the same discovery requests to which Plaintiff responded more than forty-five days ago. Plaintiff asserts that Defendants neither met and conferred regarding those responses, nor moved to compel further responses. Plaintiff contends that now, Defendants seek to compel production of duplicative discovery requests to which Plaintiff has already provided responses. Plaintiff argues that consequently, Defendants’ motion should be denied as the court has no authority to hear Defendants time-barred motion.

Plaintiff also asserts that the Court should deny Defendants’ motion under Section 2025.450(f), which requires the Court to limit additional discovery of the same matter. Plaintiff contends that any single condition set forth in Section 2025.450(f) is sufficient to require the Court to limit further discovery. Plaintiff argues that first, there are less burdensome and expensive methods of obtaining this information than an additional deposition, such as a request to supplement. Second, each deposition request is duplicative or cumulative of previous requests for production. Third, the Defendants had ample opportunity to obtain information sought through a motion to compel. And fourth, the benefit of compelling production is nonexistent as Plaintiff has already responded and is producing responsive documents.

Plaintiff also asserts that Defendants’ motion is moot because documents were already produced prior to the ex parte application being filed.

In reply, Defendants argue that Section 2025.270(c) has no application here as that section requires 20 days’ notice if the noticing party serves a subpoena to a third party and requests personal records of a consumer or employee. Defendants assert that here, Plaintiff’s deposition was noticed and she was required to produce documents in her possession, custody, or control. Defendants contend that they complied with the 10-day notice required by Section 2025.270(a).

Defendants further argue that they are not barred from requesting documents at Plaintiff’s deposition simply because those documents were requested a year prior in a request for production under Section 2031.010. Defendants assert that Sections 2031.010 and 2025.220(4) are separate methods for obtaining documents from a party.

As to Plaintiff’s other objections, Defendants contend that pursuant to Section 2025.410(a), any party objecting to any defect in a deposition notice must serve written objections three calendar days prior to the deposition date or those objections are waived.

Defendants further argue that the instant motion is not moot, as Plaintiff has not produced documents related to treatment records from Wendy Ashley, which relates to Plaintiff’s emotional distress.

The Court finds that Defendants’ Deposition Notice and concurrent Request for Production of Documents was timely. As noted by Defendants, Section 2025.270(c) relates to third party deponents that are required to be subpoenaed. The relevant Code section here is 2025.270(a), which only requires that a deposition be noticed at least 10 days before the scheduled deposition. Here, Defendants’ Deposition Notice and Request for Production of Documents was served on July 22, 2019 and the deposition took place on August 8, 2019, 17 days later. Accordingly, Defendants Deposition Notice and Request for Production of Documents was timely.

The Court further finds that Plaintiff’s motion is timely. Section 2025.450, the Code section under which this motion is brought, does not have a deadline by which Defendants must file their motion.

As to Plaintiff’s arguments under Section 2025.450(f), the Court finds that Plaintiff has not adequately demonstrated that it is possible to obtain the information from another source that is more convenient, less burdensome, or less expensive; that the discovery sought is unreasonably cumulative or duplicative; that the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; and the likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.

Finally, the Court finds that the instant motion is not moot and thus proceeds with its analysis.

Good Cause, Notice of Second Deposition, & Meet and Confer Requirement

Plaintiff argues that Defendants’ moving papers fail to set forth specific facts justifying good cause for the production of documents. Plaintiff asserts that Defendants’ motion, declaration, and separate statement are devoid of any facts justifying the production of documents. Plaintiff contends that Defendants fail to present any factual evidence by way of declaration.

Plaintiff also argues that she cannot be compelled to attend a second deposition because Plaintiff never failed to appear at a deposition. Plaintiff asserts that the only noticed deposition of Plaintiff took place on August 8, 2019. Plaintiff further contends that Defendants have completely failed to meet and confer regarding a second deposition.

In reply, Defendants argue that as shown in the Separate Statement, all of the requests quote from or directly relate to Plaintiff’s allegations in her complaint. Accordingly, the Separate Statement adequately shows good cause for the production of documents. As to the second deposition, Defendants assert that Defendants’ counsel advised Plaintiff at her deposition on August 8, 2019 that a second session would be necessary because of her failure to produce the documents. Defendants contend that Plaintiff’s counsel’s statements that Defendants’ counsel did not seek to “meet and confer” on a second deposition is false.

The Court finds that Defendants’ Separate Statement sets forth facts showing good cause justifying the demand for any documents. As noted by Defendants, each request is directly tied to an allegation in Plaintiff’s complaint. As to a notice of the second deposition, pursuant to Section 2025.450, Defendants’ noticing of the deposition on August 8, 2019 and Plaintiff’s failure to produce documents at the deposition are sufficient to compel Plaintiff’s attendance and testimony, and the production of any document described in the deposition notice. Finally, the Court finds that there has been an adequate meet and confer.

Based on the foregoing, Defendants’ motion to compel Plaintiff to produce documents and appear for a further deposition is GRANTED.

Sanctions

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code of Civ. Proc., § 2025.450(g)(1).)

Defendants seek sanctions against Plaintiff and her counsel of record, Edwin Pairavi, Joshua Mohrsaz, and Pairavi Law P.C. in the amount of $9,370.00. Defendants argue that the amount consists of 9.9 hours drafting the moving papers, an anticipated 3 hours drafting a reply to any opposition, and 3 hours appearing at the hearing billed at a rate of $300 per hour. Defendants assert that the second session of Plaintiff’s deposition will cost approximately $2,500.00 for the Court Reporter and an additional $2,100.00 for counsel’s time.

The Court finds that the amount of sanctions requested is unreasonable. Defendants are only entitled to recover for the reasonable time spent preparing the instant motion. Accordingly, the Court awards reduced sanctions in the amount of $1,500.00 for 3 hours spent preparing the moving papers, 1 hour spent preparing the reply, and 1 hour spent attending the hearing billed at a rate of $300 an hour.

Conclusion

Defendants’ motion to compel Plaintiff to produce documents and appear for a further deposition is GRANTED. Plaintiff and her counsel of record are ordered to pay sanctions in the amount of $1,500.00 to Defendants within thirty (30) days. Plaintiff must appear for the second deposition within 20 days, or on such other date to which the parties may agree.

Moving party to give notice.