2018-00230897-CU-MC

Robert Busby vs. State of California Franchise Tax Board

Nature of Proceeding: Motion for Protective Order

Filed By: Busby, Jana

Self-represented Plaintiff Jana Busby’s motion for protective order is denied.

In this employment action Plaintiff alleges causes of action for violations of FEHA in connection with a mass hiring by Defendant Franchise Tax Board (“FTB”) in 2016. Plaintiff was to begin on January 25, 2016. She submitted a resignation on January 27, 2016 but was allowed to sign up for new training in February 2016 during which time FTB claims it looked into accommodations for Plaintiff’s claimed issues with her arms, hand, and wrists. Plaintiff did not go through with the February 2016 training and in total only attended the two days of training in January 2016.

Plaintiff moves for a protective order in connection with her deposition on August 6, 2019. FTB noticed Plaintiff’s deposition for August 6, 8, and 9. Plaintiff argues that FTB’s counsel ignored her objections, interrupted her and otherwise acted inappropriately during the August 6, 2019. She seeks a protective order requiring FTB

to submit any further deposition questions in writing.

In connection with a deposition, a party “may promptly move for a protective order.” (CCP § 2025.420(a).) 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 unwanted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP § 2025.420(b).) The protective order may provide that the deposition may not be taken, or that the deposition be taken at a different time, that certain matters may not be inquired into, or that the scope be limited to certain matters. (CCP § 2025.420(1), (2). (9), 10).)

Here Plaintiff bases her motion on the contention that FTB’s counsel engaged in misconduct at the first portion of her deposition on August 6, 2019. The Court would refer to the related ruling on the motion to compel deposition by FTB on this day’s calendar. Plaintiff’s contention is unsupported and refuted by FTB in opposition. To that end she argues that FTB’s counsel ignored her objections yet she provided no evidence of this, for example, a copy of the subject deposition transcript. She also contends that FTB’s counsel has played “discovery games” apparently because counsel chose to proceed with a deposition rather than further written discovery. She further asserts that FTB’s counsel interrupted her while she was discussing Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255 and lectured her at the deposition regarding the differences between a pro per plaintiff and a licensed attorney. Again, she failed to provide any evidence of the actual deposition conduct by way of a transcript. Further, as seen in opposition, FTB’s counsel did not interrupt her at any point during the six times she discussed Rifkind in the first session of her deposition. (Curran Decl. ¶ 5 and Exh. G.)

While Plaintiff did not include any of the subject deposition transcript in connection with her motion, it was provided by the FTB in its opposition and also in her opposition to the FTB’s motion to compel. The Court simply notes that it reviewed the cited portions and there is no evidence of any harassment or any other conduct by FTB’s counsel which would entitle her to a protective order.

In short, there is no evidence of any harassment or any conduct which would entitle Plaintiff to a protective order precluding her further deposition or requiring FTB to submit written deposition questions.

The motion is denied.

Given the above the Court need not address FTB’s argument that Plaintiff failed to meet and confer.

Plaintiff’s request for sanctions is denied as her motion was denied. FTB’s request for sanctions is denied as the Court finds that sanctions would be unjust under the circumstances.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.

Item 6 2018-00230897-CU-MC

Robert Busby vs. State of California Franchise Tax Board

Nature of Proceeding: Motion to Compel Oral Deposition

Filed By: Curran, James F.

Defendant Franchise Tax Board’s (“FTB”) motion to compel self-represented Jana Busby to appear for her deposition is granted.

FTB moves to compel Plaintiff to appear and complete her properly noticed deposition and answer questions that she refused to answer at the first session.

Pursuant to CCP § 2025.450(a), where a deposition notice has been properly served and the party subject to the notice fails to appear or proceed with it, the party serving the notice may move for an order compelling the deponent’s attendance and testimony. Here, FTB properly noticed Plaintiff’s deposition for August 6, 8 and 9. Plaintiff did not serve any objections to the deposition notice. Prior to the start of the second deposition session Plaintiff canceled the remaining sessions informing FTB’s counsel that she was seeking to retain an attorney. However, Plaintiff has not retained an attorney and refuses to submit to further oral deposition instead demanding that the deposition proceed by written questions. The Court has denied Plaintiff’s motion for a protective order seeking to restrict the deposition to written questions. FTB is entitled to an order compelling Plaintiff to appear and complete her properly noticed deposition.

In addition, Plaintiff shall answer the questions identified in FTB’s motion which she refused to answer at the first deposition session. As seen from the papers, Plaintiff refused to answer questions based on relevance and objections based on the form of the question. However, it is generally improper not to answer a question unless it calls for privileged matter or deposing counsel’s conduct has reached a point where suspension of the deposition is warranted. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015.) Further, while she interposed objections based on Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255 which held that questions asking a witness to state facts supporting a particular contention, while appropriate in interrogatories, are not appropriate at a deposition, that objection is misplaced here. The questions were asking for simple facts (e.g. what year did your husband call the Department of Rehabilitation?, or why do you think so many entities have discriminated against you on the basis of your disability?) Plaintiff may interpose objections as she sees fit at the continued deposition, for example, objecting to the form of the question, but unless the question calls for privileged or other protected information, she should not refuse to answer the question. In addition, Plaintiff should not rely upon Rifkind as a basis to refuse to answer questions unless those question actually require her to state all facts and/or identify documents supporting a legal theory (e.g. a legal contention question). Indeed, the perceived vice in Rifkind was in relation to questions concerning a legal contention being applied to facts. In contrast, the Rifkind court saw no problem in asking factual questions; in fact it opined “If the deposing party wants to know facts, it can ask for facts.” Id. at p. 1262.

While Plaintiff has opposed the motion, she has failed to present any argument that would prevent the Court from granting the motion requiring her to appear for her continued deposition and to answer the questions identified in the moving papers. In reality, her opposition is a continuation of her motion for protective order, which the Court has denied. She has attached a document showing corrections that she desires to make with respect to the first session of her deposition apparently believing that those changes show she was somehow harassed in her deposition. That document does not show any harassment by FTB’s counsel and in reality have no relevance to the instant motion, and do not inform the court’s decision.

The motion is granted. Plaintiff is ordered to appear for her continued deposition and to answer the questions identified in FTB’s moving papers. The continued deposition shall be completed no later than December 4, 2019. The parties shall meet and confer on the specific dates, times and location of the continued deposition.

FTB’s request for sanctions is denied. The Court finds that sanctions would be unjust under the circumstances.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.