Case Number: BC511129??? Hearing Date: May 31, 2016??? Dept: O
Gharibian v. Behavioral Health Services, Inc., et al. (BC511129)
Defendant Behavioral Health Services, Inc.?s MOTION FOR A PROTECTIVE ORDER AND APPLICATION FOR ORDER APPOINTING DISCOVERY REFEREE TO SUPERVISE DEPOSITION AND REQUEST FOR SANCTIONS
Respondent: Plaintiff Gharibian
TENTATIVE RULING
Defendant Behavioral Health Services, Inc.?s motion for a protective order and application for order appointing discovery referee to supervise deposition and request for sanctions is GRANTED. A discovery referee shall be present at the continued deposition, costs to be borne by Attorney Penuela. Sanctions are imposed against Attorney Penuela in the sum of $2,520.00, payable within 30 days.
Motions
Defendants move for a protective order, discovery referee to supervise the PMK deposition at Roy Penuela?s expense, and sanctions in the sum of $2,520.00 against Penuela.
The day before the deposition, defense counsel was made aware that its PMK has a severe fear of heights. When asked for an accommodation, Plaintiff?s counsel Gevshenian, laughed at defense counsel?s assistant, and accused defense counsel of playing games. After meet and confer letters were exchanged, Gevshenia finally agreed to the accommodation.
On the date of the deposition, attorney Penuela engaged in inappropriate, abusive, and accusatory conduct. Penuela also badgered Rivas over the production of a document that had already been produced, smirked at his answers, improperly objected to a representative of the defendant being present during his deposition, and continued to harangue him until defense counsel ended the deposition.
In the opposition, Plaintiff?s counsel asserts Defendant?s attorney firm tried to hide evidence in a prior, unrelated case.
Analysis:
Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (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 unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (CCP 2025.420(b).)
The deposition officer may not suspend the taking of testimony without the stipulation of all parties present unless any party attending the deposition, including the deponent, demands that the deposition officer suspend taking the testimony to enable that party or deponent to move for a protective order under Section 2025.420 on the ground that the examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party. (CCP 2025.470.)
When 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. (CCP 639(a)(5).)
The court has reviewed the deposition transcript and finds that Attorney Penuela examined the deponent in a manner that unreasonably annoyed, embarrassed, or oppressed the witness. When asked if the witness knew who did the redaction, the witness responded, ?I don?t know.? Yet, Penuela proceeded to incessantly question the witness about the redaction, despite multiple objections, and speculated to the witness that spoliation of evidence has occurred because this firm has destroyed evidence in a prior unrelated case. Penuela also accused Defendant?s counsel, in the presence of her clients, of hiding evidence because an incident report was not produced by the deponent, even though the document had been produced a year earlier.
All members of the bar should treat each other, as well as third party witnesses, with respect and civility. (California Attorney Guidelines of Civility and Professionalism Sec. 9(a)(3)-(5).)
Accusing opposing counsel of unethical conduct (such as spoliation of evidence), in the presence of her own clients, and based on events that took place over 20 years ago which did not involve attorneys involved in this action, is both disrespectful and uncivil.
Motion is GRANTED. A discovery referee shall be present at the continued deposition, costs to be borne by Attorney Penuela. Cousel are to meet and confer and select a referee.
SANCTIONS: The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, 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.
Sanctions are warranted, and are imposed against Attorney Penuela in the sum of $2,520.00, payable within 30 days.