Case Number: BC570173??? Hearing Date: April 27, 2016??? Dept: 98
SAMANTHA CABRERA, et al.,
Plaintiffs,
vs.
OLYMPIC SPA, et al.,
Defendants.
CASE NO: BC570173
[TENTATIVE] ORDER DENYING MOTION FOR A PROTECTIVE ORDERDept. 98
1:30 p.m.
April 27, 2016
On January 23, 2015, Plaintiffs Samantha Cabrera and Triston Cabrera (?Mr. Cabrera?) filed this action. This action arises out of alleged damages sustained by Plaintiff Samantha Cabrera (?Plaintiff?) during a waxing procedure. Mr. Cabrera had a claim for loss of consortium, but was dismissed from the action on April 20, 2015. The couple has also relocated to Washington. Counsel for Defendants SY Health Corp. dba Olympic Spa and Thuy Thi Ta (?Defendants?) contacted Plaintiff?s Counsel, seeking to arrange the deposition of Mr. Cabrera. Plaintiff objected, asserting the testimonial and marital communication privileges, as well as Mr. Cabrera?s right to privacy. Mr. Cabrera, as a non-party deponent, now moves for a protective order.
A deponent may move for a protective order before, during, or after a deposition. Cal. Code of Civ. Proc. ? 2025.420(a). The court, for good cause shown, may make any order that justice requires to protect any deponent from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. Id., ? 2025.420(b). The protective order may direct that the deposition be taken on certain specified terms and conditions or the scope of the examination be limited to certain matters. Id., ? 2025.420(b).
Plaintiff claims that the subject incident harmed her sexual relationship with Mr. Cabrera. Defendants seek to depose Mr. Cabrera as a percipient witness to Plaintiff?s claims. California law governs discovery in California cases. Internat. Ins. Co. v. Montrose Chemical Corp. (1991) 231 Cal.App.3d 1367, 1371.
Marital Testimonial Privilege
Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding or to be called as a witness by an adverse party. Cal. Evid. Code ? 970. There is no privilege in a civil proceeding brought or defended by a married person for the immediate benefit of his spouse or of himself and his spouse. Cal. Evid. Code ? 973(b).
Except as provided in Section 781, money and other property received or to be received by a married person in satisfaction of a judgment for damages for personal injuries, or pursuant to an agreement for the settlement or compromise of a claim for such damages, is community property if the cause of action for the damages arose during the marriage. Cal. Family Code ? 780. Section 781 provides that such money or other property is separate property if the cause of action for the damages arose: 1) after the entry of a judgment of dissolution of a marriage or legal separation of the parties; or 2) while either spouse, if he or she is the injured person, is living separate from the other spouse. Cal. Family Code ? 781. Mr. Cabrera does not assert that either situation described in Section 781 applies here. In Hand v. Superior Court (1982) 134 Cal.App.3d 436, the court held that a husband?s personal injury action was a proceeding for the ?immediate benefit? of his wife. Id., at 439. Therefore, the wife could not interpose the spousal privilege pursuant to Evidence Code Section 973, subdivision (b). Id., at 442.
In light of the foregoing, the Court finds that Mr. Cabrera is an immediate beneficiary of Plaintiff?s personal injury action and, therefore, the testimonial privilege of Evidence Code Section 970 does not apply.
Marital Communication Privilege
A spouse, whether or not a party, has a privilege during the marital relationship to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife. Cal. Evid. Code ? 980. The privilege extends to written as well as oral communications. Rubio v. Superior Court (1988) 202 Cal.App.3d 1343, 1347. Further, ?the fact of communicating, as opposed to the substance of the communication, is not privileged.? Id., at 1348 (stating that the fact that sex acts were performed is probably not a privileged communication). The marital communication privilege ?does not extend to physical facts which are observed, which do not constitute ?communications.?? People v. Dorsey (1975) 46 Cal.App.3d 706, 717.
In light of the foregoing, the Court concludes that the marital communications privilege does not apply to the deposition testimony sought from Mr. Cabrera. The Court also finds that Mr. Cabrera?s right to privacy is outweighed by Defendants? need for the information, as Mr. Cabrera is the only other person who can corroborate Plaintiff?s claims. Therefore, Mr. Cabrera?s Motion for a Protective Order is DENIED.
Sanctions
The court must impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Cal. Code of Civ. Proc. ? 2025.420(h). Defendants seek monetary sanctions against Mr. Cabrera and his Counsel, Mardirossian & Associates, Inc., in the amount of $1,020.00. Defendants contend that four hours were spent preparing their Opposition and two hours will be spent appearing at the hearing, at a rate of $170.00 per hour. The Court finds one hour to prepare the Opposition and one hour to appear to be sufficient to compensate Defendants. Therefore, the Court awards Defendants a total of $340.00 in monetary sanctions against Mr. Cabrera and Mardirossian & Associates, Inc.
Dated this 27th day of April, 2016
Hon. Holly J. Fujie
Judge of the Superior Court