Restivo Enterprises, Inc. v. Doan, et al.		CASE NO.113CV255867
DATE: 14 November 2014	TIME: 9:00	LINE NUMBER: 10

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 13 November 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 14 November 2014, the motion of Defendants Jonathon Covey, Duc Doan and Jose Retana (“Defendants”) to: (1) to compel Philip Restivo to answer deposition questions; (2) for a protective order to control conduct at the anticipated continued deposition of Philip Restivo; (3) to appoint a discovery referee and for monetary sanctions was argued and submitted.  Plaintiff Restivo Enterprises, Inc. (“Plaintiff”) filed formal opposition to the motion.

1. Statement of Facts

This action arises from the purported misappropriation of Plaintiff’s trade secrets by Defendants, former chauffeurs employed by Plaintiff’s limousine service. Plaintiff alleges that Defendants made copies of trip tickets, customer lists and recorded contact information of customers with an intent to solicit these customers in violation of contractual agreements between the parties.

In its Complaint filed 8 November 2013, Plaintiff asserts causes of action for misappropriation of trade secrets, breach of contract, intentional interference with prospective economic relations, civil conspiracy, conversion, unfair trade practices and breach of fiduciary duty.

1. Discovery Dispute

On 15 August 2014 Defendants began taking the deposition of Philip Restivo, the sole of owner of Plaintiff.  The deposition began at approximately 10:00 a.m. and was suspended at approximately 1:00 p.m. due to the apparent failure of everyone involved to behave in a calm professional manner.  Mr. Restivo was instructed by Counsel Michael Ackerman not to answer several questions, some on purported grounds of privilege (a potentially proper basis) and some on other, clearly improper bases, such as purported irrelevance.  See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal App 4^th 1006, 1014-1015.

Counsel for both sides met and conferred via email from 4-5 September 2014 but were unable to agree as to how to move forward and complete Mr. Restivo’s deposition.  See Declaration of Cary Kletter (“Kletter Decl.”), Ex. B.

Consequently on 3 October 2014 Defendants filed the instant motion.  On 31 October 2014 Plaintiff filed its opposition.  The Reply was filed on 6 November 2014.

III.           Discussion

1. Request for Judicial Notice

Pursuant to Evidence Code §452(d), Plaintiff requests that the Court take judicial notice of two documents, 1) The Court’s prior Order of 1 May 2014, and 2) The Court’s prior Order of 19 September 2014.  Neither document is relevant to the Court’s evaluation of the motion presently before and so the request is DENIED.  A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court.  (See Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal App 4^th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal 4^th 415, 422 fn. 2.)

1. Motion to Compel Philip Restivo to Answer Deposition Questions

Defendants’ motion seeks to have Mr. Restivo answer an unspecified number of deposition questions.

1. Legal Standard

If a deponent fails to answer a question at his or her deposition, the party seeking discovery may move for an order compelling an answer. (Code Civ. Proc., § 2025.480, subd. (a).) There is no requirement that the moving party show good cause to compel answers at a deposition. (Compare Code Civ. Proc., § 2025.40, subd. (b)(1) [showing of good cause required where motion pertains to production of documents described in deposition notice] with subd. (b)(2) [no good cause requirement where motion pertains to oral testimony].) A deponent who has objected to a question and refused to answer bears the burden of justifying such a refusal. (See Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

Such a motion “must be accompanied by” a separate statement, as clearly stated by Rule of Court 3.1345(a)(4).  This obviously means that the required statement must be filed with the moving papers.  Accordingly the Court has not considered the statement filed by Defendants with their Reply brief on 6 November 2014, well after Plaintiff’s Opposition (pointing out the lack of the required separate statement) was filed.  Defense Counsel could not have reasonably believed that this late filing cured the defect and would be considered by the Court.

2. Analysis

Given the failure to file the required statement with the motion, the motion is DENIED.

Despite this, before the deposition of Mr. Restivo resumes, Plaintiff’s Counsel is directed to review the Stewart decision to refresh his recollection on the very limited circumstances in which it is inappropriate to instruct a client not to answer a question at deposition.  Both attorneys are directed to review the Santa Clara County Bar Association’s Code of Professionalism, Section 9 on Discovery, and in particular subsection 9a(11): “Lawyers should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.”

1. Motion for Protective Order

Defendants seek a protective order “(1) precluding Plaintiff’s attorney from improperly instructing witnesses to not answer deposition questions; (2) precluding Plaintiff’s counsel from acting inappropriately during depositions by, inter alia, making comments that are neither objections nor instructions after questions are asked before they are answered, coaching the witness on the record, and making ‘speaking’ objections; and (3) precluding deponent Philip Restivo from improperly refusing to answer questions or making lewd comments.”  Defendants’ Memorandum of Points and Authorities at 10:15-20.  Plaintiff offers no specific response to this request in the opposition brief.

1. Legal Standard

Any party or deponent may move for a protective order before, during, or after a deposition.  (CCP, § 2025.420(a).)  The court may make any order that justice requires to protect the party or deponent from unwarranted annoyance, embarrassment, or oppression (CCP, § 2025.420(b)), including an order directing that the deposition be taken only on specified terms and conditions (CCP, § 2025.420(b)(5)).

The issuance and formulation of protective orders are to a large extent discretionary.  (Raymond Handling Concepts Corp. v. Super. Ct. (1995) 39 Cal.App.4th 584, 587-588.)  However, the court must balance the competing interests implicated by a request for a protective order by requiring the moving party to demonstrate “good cause” for the restriction sought.  (Westinghouse Electric Corp. v. Newman & Holtzinger (1995) 39 Cal.App.4th 1194, 1209; see also CCP, § 2025.420(b).)

 

2. Analysis

The Court finds that good cause has not been shown and the motion for protective order is DENIED.  While it is evident from the excerpts of the deposition transcript provided by both sides that neither attorney nor Mr. Restivo conducted themselves in professional manner at the deposition the proposed order quoted above (apart from the request for a referee discussed below) amounts to little more than a request for an order that counsel abide by the standards of professional conduct they should already be observing as members of the bar and officers of the Court.  The Court should not have to tell counsel that when representing clients in contentious litigation part of their job is to remain calm, composed and professional, particularly when dealing with their counterparts, and not to add more unproductive animosity to the situation.  Both counsels are hereby admonished to review and abide by the Santa Clara County Bar Association’s Code of Professionalism, Section 9 on Discovery.  Plaintiff’s counsel is directed to instruct his client to behave in a calm, reasonable manner when his deposition resumes and to refrain from using profanity when addressing Defense Counsel.

1. Motion for Referee

Defendants also seek a protective order providing for the appointment of a discovery referee to supervise the continued deposition of Philip Restivo when it resumes to be paid for solely by Mr. Restivo.

1. Legal Standard

A motion to appoint a discovery referee may be made pursuant to CCP § 639(a).  CCP § 639(a)(5) provides: “When the parties do not consent, the court may, upon the written motion of any party … appoint a referee … [w]hen the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.”

Discovery referees are not granted lightly and, pursuant to CCP § 639(d), the Court must find that exceptional circumstances require the appointment and specify the individual appointed and the maximum hourly rate that may be charged.  (See e.g. Taggares v. Super. Ct. (1998) 62 Cal.App.4th 94, 105.)  “Unless both parties have agreed to a referee, the court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present.”  (Id.)  The factors favoring reference include: “(1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.”  (Id.)

2. Analysis

When considering a motion to appoint a referee the trial court must consider that the statutory scheme is designed to permit reference over a party’s objections only where it is necessary, and not merely a matter of convenience.  (See Taggares, supra, at 105-106.)  Defendants have not clearly demonstrated that a discovery referee is necessary, and given that this Court is dedicated to handling discovery matters, the need to pass this case to a referee is lesser.

Furthermore, there is no indication that appointment of a referee would save the parties or the court any time and effort.  A referee is intended to address discovery matters, not to monitor the parties’ behavior.  Notably, a discovery referee does not have authority to issue court orders, but is limited to reporting its findings and making recommendations to the Court.  (Doyle v. Sup. Ct. (1996) 50 Cal.App.4th 1878, 1884, fn. 1.)  As such, even if a referee were appointed, this Court would still need to review the referee’s findings, issue orders, and potentially hear the parties’ objections to those findings.  (Id.)

Given that the only issue here is the ability of only two parties to comport themselves in a professional manner while completing Mr. Restivo’s deposition a referee is not necessary and the motion is DENIED.

1. Motion for Monetary Sanctions

Defendants, pursuant to CCP §§ 128.6 and 2023.030, ask the Court to impose monetary sanctions “against Plaintiff and/or Plaintiff’s attorney of record,” in the amount of $1,000 “for their bad faith actions and tactics and abuse of the discovery process.”  Defendants’ Memo. of Points and Authorities at 11:10-11.  They also seek recovery of $2,920 in attorneys’ fees related to the motion.  See Kletter Decl. at 9.

As CCP §128.6 was repealed effective 1 January 2011, it is not a valid basis for requesting monetary sanctions.  The request for sanctions is therefore DENIED.  Furthermore as each of Defendants’ motions are denied the request that Plaintiff be ordered to pay Defendants their attorneys’ fees incurred in bringing the motions is also DENIED.

1. Conclusion and Order

Plaintiff’s request for judicial notice is DENIED.

Defendants’ motion to compel Philip Restivo to answer questions at the continuation of his deposition is DENIED.  Defendants’ motion for a protective order is DENIED.  Defendants’ motion to appoint a discovery referee is DENIED.

Defendants’ request for monetary sanctions and attorneys’ fees is DENIED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara