Flores v. Group One Construction, Inc., et al.		CASE NO. 112CV215989
DATE: 25 July 2014	TIME: 9:00	LINE NUMBER: 28

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 24 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 July 2014, the motions of Plaintiff Saul Flores to quash deposition subpoenas on third party witnesses, the motion to stay the depositions of those third party witnesses, a motion for protective order, and for monetary sanctions was argued and submitted.  Defendant Group One Construction, Inc. filed formal opposition to the motion and makes a request for monetary sanctions.  Plaintiff filed a reply brief.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[1]

Background

This case arises out of an alleged wrongful termination. Plaintiff Saul Flores alleges that he entered into an agreement between Defendant Group One Construction, Inc. and himself. He further alleges Mr. Flores’ role was as Vice-President and a managing officer of the corporation. In 2011, Mr. Flores began treatment for throat cancer. Soon after, Defendants terminated Mr. Flores’ employment.

Defendant Group One Construction denies each of Plaintiff’s allegations.

Mr. Flores filed suit alleging wrongful termination and other related claims. Defendant filed a counter-claim for fraud, breach of contract, and other claims.

Discovery Dispute

On 9 July 2014, Defendant Group One Construction, Inc. (“Group One”) served five deposition subpoenas on five third party witnesses. These witnesses are former business associates of Plaintiff from the period prior to or contemporaneous with the matters the instant lawsuit addresses. Plaintiff served objections to these deposition subpoenas. After Defendant responded to these objections and refused to withdraw the subpoenas, Plaintiff filed the instant motions.

Plaintiff asserts that Defendants maintain that the wrongful termination of Plaintiff was justified by pointing to other businesses that Plaintiff was trying to pursue separate from Group One.  Plaintiff  further claims that Defendants’ feigned ignorance of Plaintiff’s  over 20 rule solely conviction, restaurant ventures and construction projects predating the formation of Group One.

 

Motion to Stay Depositions

After serving written objections, as part of a motion to quash the deposition, a party may move to stay a deposition pending the determination of the validity of the objections. Code Civ. Proc. §2025.410(c). While the court considers this motion, the deposition is automatically stayed. Id. This motion must be accompanied by a meet and confer declaration as defined under Code of Civil Procedure section 2016.040. Id

The Court addresses the meet and confer requirement ante. The Court is not required to make an order to stay the depositions. The depositions of Dan Reid, Bryan Godfrey, Chris Campisi, Doug Cookerly, and John Gilbert are stayed until the resolution of this motion as a matter of law.

Meet and Confer Declaration.

A meet and confer declaration must show the moving party’s reasonable and good-faith attempts to resolve the dispute prior to filing the motion. Code Civ. Proc. §2016.040. Such a declaration should address the factors the court uses to determine reasonableness and good faith. See Stewart v. Colonial W. Agency Inc. (2d Dist. 2001) 87 Cal.App.4th 1006, 1016; Obregon v. Superior Ct. (2d Dist. 1998) 67 Cal.App.4th 424, 431. These factors include the size and complexity of the matter, the history of the litigation, the nature of the dispute, the discovery requirested, the prospects for success or any other factors that might be relevant. Stewart, 87 Cal.App.4th at 1016.

Plaintiff’s counsel’s declaration refers only to the fact that Plaintiff sent a meet and confer correspondence to Defendant and then refers to the mail and e-mail as an exhibit.[2] The statement identifying the correspondence as meet and confer is itself insufficient to demonstrate any of the relevant Stewart factors. However, the language in the attached and referenced exhibit does provide cognizant reasoning and its tone is such that this appears to be a reasonable and good faith attempt to resolve the matter without requiring the Court’s intervention. The Court finds that the meet and confer attempt was valid.

Motion to Quash

Because the matters regarding each third-party witness are similar, the Court will address them all collectively.

A party may make a motion to quash a deposition subpoena based either on errors in the deposition notice or based on substantive objections. Code Civ. Proc. §1987.1(a). Such objections include that the subpoena seeks information that is outside of the scope of discovery. See Code Civ. Proc. §2017.010. The scope of discovery is limited to information that is relevant to the subject matter involved in the pending action, or to the determination of any motion made in that action. Code Civ. Proc. §2017.010.

Relevant evidence is any evidence, including that relating to the credibility of a witness, that has any tendency to prove or disprove a disputed fact that is of consequence to the determination of the action. Evid. Code §210. Only relevant evidence is admissible evidence. Evid. Code §350. All relevant evidence is admissible, except if excluded by statute. Evid. Code §351. A witness’ credibility may be judged by, inter alia, his character for honesty or veracity or their opposites. Evid. Code §780(e). Evidence of character, except for specific instances of conduct, is admissible to support or attack the credibility of a witness. Evid. Code §§1101(c); 787.

Plaintiff argues that the deposition of the five individuals is not relevant and will provide neither admissible evidence nor lead to admissible evidence. Plaintiff’s argument hinges on the assumption that any information obtained from the deposition will refer to specific acts in an effort to prove conduct.

Plaintiff’s counsel’s declaration in support of the motion and attached exhibits, however, tells a different story. Defendants specifically refer to seeking opinion and reputation evidence from the deponents, as well as instances of conduct that are not for the purpose of proving Plaintiff’s particular conduct at another time, but to raise an inconsistency with Plaintiff’s prior claims.

Defendant presents a valid justification for each proposed deponent, identifying the purpose and the goal of each deposition. This information is both relevant as defined under the Evidence Code and would be admissible for at least one purpose.[3] Therefore, Plaintiff’s motion to quash must fail.

Plaintiff’s motion to quash the deposition subpoenas of Chris Campisi, John Gilbert, Bryan Godfrey, Dan Reid, and Doug Cookerly is DENIED.

Motion for Protective Order

Plaintiff seeks a protective order to bar the depositions of Chris Campisi, John Gilbert, Bryan Godfrey, Dan Reid, and Doug Cookerly under Code of Civil Procedure section 2025.420. A court, for good cause shown, may issue any order that justice requires to protect any party, deponent or other natural person from unwarranted annoyance, harassment, burden or expense. Code Civ. Proc. §2025.420(b).

Plaintiff provides no authority outlining the factors or elements a Court utilizes to determine whether there is sufficient good cause. Plaintiff instead states in a conclusory fashion that good cause exists for a protective order to bar the depositions of the above individuals. These statements include that the depositions only serve to annoy, oppress and harass Plaintiff, will not yield any admissible evidence and will result in undue burden and expense. As indicated, supra, the depositions could lead to admissible evidence. Plaintiff’s claim of annoyance or oppression are without support in Plaintiff’s motion. Plaintiff also offers no facts that expenses are undue. For these reasons, the Court denies the motion for a protective order under Plaintiff’s terms.

Plaintiff’s motion for a protective order to bar the depositions of Chris Campisi, John Gilbert, Bryan Godfrey, Dan Reid, and Doug Cookerly is DENIED.

Protective Order

If a court denies a motion in whole, or in part, the court may order the deponent to provide or permit the discovery on those terms the court considers just. Code Civ. Proc. §2025.420(g).

The Court is concerned by the sheer quantity of deponents and the apparently limited amount of information each deponent may have, as referenced in Defendant’s counsel’s letter to Plaintiff’s counsel. Because of Defendant’s apparently limited scope for each witness, the deponents, Chris Campisi, John Gilbert, Bryan Godfrey, Dan Reid, and Doug Cookerly, are each ordered to sit for deposition for a maximum of one hour each at a code-compliant location. Deposition of each individual will take no more than one hour. The Court trusts that counsel for both sides will not abuse this time limit.

Defendants will notice the deposition subpoenas for Chris Campisi, John Gilbert, Bryan Godfrey, Dan Reid, and Doug Cookerly to take place within 15 days of the date of this order. The depositions will each take a maximum of two hours and will be completed within a three-day span.

Monetary Sanctions

Plaintiff seeks monetary sanctions against Defendant and Defendant’s counsel under Code of Civil Procedure Sections 2023.010(c), 2025.410 and 2025.420. These sections provide that sanctions are available upon a successful motion. Plaintiff’s motions were entirely unsuccessful, and therefore the request for sanctions must fail.

Plaintiff’s request for monetary sanctions is DENIED.

Defendant seeks monetary sanctions against Plaintiff and Plaintiff’s counsel under Code of Civil Procedure Sections 2025.410(d) and 2025.420(h). These sections mandate that sanctions shall be awarded unless the Court finds the opposing party acted with substantial justification or the imposition of sanctions would be unjust.

The Court spent a considerable amount of time grappling over these issues. In particular, the Court could not find, and neither party has cited, any case law that speaks to discovery related to credibility of a witness, as opposed to factual background of the case. The Defendant’s argument is compelling, but the Plaintiff’s argument also holds weight raising concerns about what limits should apply to a deposition for credibility evidence. For this reason, the Court finds the Plaintiff acted with substantial justification in making the motion and declines to award sanctions.

Defendant’s request for monetary sanctions is DENIED.

Conclusion and Order

Plaintiff’s motion to quash the deposition subpoenas of Chris Campisi, John Gilbert, Bryan Godfrey, Dan Reid, and Doug Cookerly is DENIED.

Plaintiff’s motion for a protective order to bar the depositions of Chris Campisi, John Gilbert, Bryan Godfrey, Dan Reid, and Doug Cookerly is DENIED.

Plaintiff’s request for monetary sanctions is DENIED.

Defendant’s request for monetary sanctions is DENIED.

The mandatory stay imposed by Code of Civil Procedure section 2025.410(c) is hereby lifted.

Defendants will notice the deposition subpoenas for Chris Campisi, John Gilbert, Bryan Godfrey, Dan Reid, and Doug Cookerly to take place within 15 days of the date of this order. The depositions will each take a maximum of two hours and will be completed within a three-day span.