Case Name:??? Henry Pinheiro and Cindy Pinheiro v. Shirley Williams, et al. ????????????
Case No.:??????? 2014-1-CV-272438
Factual and Procedural Background
This is an action for assault and battery.? Plaintiffs Henry Pinheiro (?Henry?) and Cindy Pinheiro (?Cindy?), husband and wife (collectively, ?Plaintiffs?), reside next door to defendant Shirley Williams (?Williams?).[1]? (See First Amended Cross-Complaint [?FACC?] at ?? 1-3.)? On August 9, 2014, defendant Daniel Gunther (?Gunther?) was visiting Williams at her home.? (Id. at ? 6.)? On that day, Henry and Gunther got into a physical altercation where Gunther suffered physical injuries.? (Id. at ? 13.)? Thereafter, Gunther was charged with criminal assault and later acquitted by a jury on all charges on January 29, 2016.? (Id. at ?? 14-15.)? As a result of the altercation, Gunther has been unable to secure employment in the field of technology sales and suffered emotional distress.? (Id. at ?? 16, 32, 33, 36.)
On May 29, 2015, Plaintiffs filed a judicial council form second amended complaint (?SAC?) against defendants setting forth causes of action for: (1) intentional tort [against Gunther]; and (2) negligence [against Williams].
On January 29, 2016, a judgment of dismissal was filed with respect to defendant Williams following the sustaining of the demurrer without leave to amend to the SAC.
On July 15, 2016, defendant Gunther filed the operative FACC setting forth causes of action for: (1) battery; (2) negligence; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress.
On July 18, 2016, defendant Gunther took Cindy?s deposition.? (See Declaration of Aaron B. Markowitz at ? 3; Exhibit 1.)? Henry did not appear for his deposition.? (See Declaration of Harpaul Nahal at ? 27; Exhibit U.)? During Cindy?s deposition, Plaintiffs? counsel objected on grounds that certain questions were not relevant to the subject matter of the lawsuit.? (See Declaration of Aaron B. Markowitz at ? 4.)? Ultimately, Plaintiffs? counsel suspended the deposition to seek a protective order.? (Ibid.)
Thereafter, the parties engaged in meet and confer in an effort to limit the questions at Cindy?s deposition to the subject matter of the lawsuit.? (See Declaration of Aaron B. Markowitz at ?? 5-11; Exhibits 6-12.)? The parties were unable to resolve the discovery dispute and now seek intervention from the Court.
The following motions are presently before the Court: (1) Cindy?s demurrer to the FACC; (2) Plaintiffs? motion for protective order; (3) Gunther?s motion to compel Plaintiffs? attendance and testimony at depositions; (4) Gunther?s motion for contempt, issue, evidence, and terminating sanctions; and (5) both parties? requests for monetary sanctions.
Demurrer to the FACC?????
Cindy demurs to the FACC on the ground that it fails to state a cause of action.? (Code Civ. Proc., ? 430.10, subd. (e).)? The demurrer was personally served and no opposition was filed with the Court.? As the motion appears to be well-taken, the demurrer to the FACC is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a claim.? (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading].)
Motion for Protective Order
Plaintiffs move for a protective order limiting questions at their depositions to events surrounding the August 9, 2014 incident and damages suffered by the parties as a result of that incident.
Legal Standard
?Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly for a protective order.?? (Code Civ. Proc., ? 2025.420, subd. (a).)? ?The motion shall be accompanied by a meet and confer declaration under Section 2016.040.?? (Ibid.)
?Code of Civil Procedure section 2025.420, subdivision (b), provides a nonexclusive list of permissible directions that may be included in a protective order.?? (Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 316.)? A protective order may include the direction that the scope of the examination be limited to certain matters.? (Code Civ. Proc., 2025.420, subd. (b)(10).)
?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.?? (Code Civ. Proc., ? 2025.420, subd. (b).)? ?[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.?? (Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255.)
Analysis
Plaintiffs seek a protective order which limits questions during their depositions to matters surrounding the subject altercation and any damages suffered by the parties resulting from the incident.? Plaintiffs contend that a protective order is required because defense counsel asked deposition questions which infringe on Plaintiffs? privacy rights and the marital privilege.
As an initial matter, the Court notes that plaintiff Henry did not attend and testify at his deposition.? (See Declaration of Harpaul Nahal at ? 27; Exhibit U.)? Also, after reviewing the deposition transcript for plaintiff Cindy, Plaintiffs? counsel did not raise any objection with respect to the marital privilege.? To the extent that Plaintiffs raise an objection based on privacy, Plaintiffs? counsel fails to explain how any deposition questions violated Cindy?s right to privacy.? Furthermore, to the extent that Plaintiffs object to deposition questions on relevance grounds, Plaintiffs are reminded that parties may seek discovery that is not just relevant but also reasonably calculated to lead to the discovery of admissible evidence.? (See Code Civ. Proc., ? 2017.010.)? Any doubts with respect to relevance are generally resolved in favor of permitting discovery.? (Colonial Life & Acc. Ins. Co. v. Sup. Ct. (1982) 31 Cal.3d 785, 790.)? Thus, the Court finds that Plaintiffs fail to provide any good cause for a protective order.
Consequently, the motion for protective order is DENIED.
Motion to Compel Depositions
Gunther seeks an order from the Court compelling Plaintiffs to attend and testify at their oral depositions.
Request for Judicial Notice
Plaintiffs? request for judicial notice is GRANTED.? (See Evid. Code ? 452, subd. (d); see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files].)
Legal Standard
If after service of a deposition notice, the party fails to appear for examination, without having served a valid objection under Code of Civil Procedure Section 2025.410, the party giving the deposition notice may move for an order compelling the deponent?s attendance and testimony.? (Code Civ. Proc., ? 2025.450.)
Analysis
Plaintiffs do not oppose Gunther?s motion to compel depositions except that any further deposition should be subject to a protective order.? As stated above, the Court rejected Plaintiffs? motion for a protective order as the request was not supported by any good cause.
With respect to plaintiff Henry, it remains undisputed that he did not attend and testify at his oral deposition.? (See Declaration of Harpaul Nahal at Exhibit U.)? Therefore, the motion to compel deposition as to plaintiff Henry is GRANTED.? The parties shall meet and confer on a time, date, and location for the deposition which shall take place within 30 calendar days of this Order.
With respect to plaintiff Cindy, the record clearly shows that she appeared and testified at her oral deposition.? Cindy?s deposition was cut short as Plaintiffs? counsel terminated the deposition to file a motion for protective order.? Thus, there is no failure to appear to support relief under Code of Civil Procedure section 2025.450.? Therefore, the motion to compel deposition with respect to plaintiff Cindy is DENIED.? However, having denied the request for a protective order, Plaintiffs do not otherwise contest plaintiff Cindy appearing and testifying at her deposition.? Therefore, the parties shall meet and confer on a time, date, and location to continue with plaintiff Cindy?s deposition which shall take place within 30 calendar days of this Order.
Motion for Contempt, Issue, Evidence, and Terminating Sanctions
Gunther also seeks an order imposing contempt, issue, evidence, and terminating sanctions against Plaintiffs.? As an initial matter, Gunther?s memorandum of points and authorities fails to address any argument in support of contempt.? (See Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [stating that the trial court has no ?obligation to comb the record and the law for factual or legal support that a party has failed to identify or provide?].)? Thus, the Court will address whether issue, evidence, and terminating sanctions are appropriate in this action.[2]
Legal Standard
California discovery law authorizes a range of penalties for conduct amounting to ?misuse of the discovery process.?? (Code Civ. Proc., ? 2023.030; Cedars-Sinai Medical Center v. Sup. Ct. (1998) 18 Cal.4th 1, 12.)? Code of Civil Procedure section 2023.030 authorizes a trial court to impose, issue sanctions, evidence sanctions, or terminating sanctions against ?anyone engaging in conduct that is a misuse of the discovery process.?
?The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process.? The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.?? (Code Civ. Proc., ? 2023.030, subd. (b).)
?The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.?? (Code Civ. Proc., ? 2023.030, subd. (c).)
?The court may impose a terminating sanction by one of the following orders: [?] (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.? [?] (2) An order staying further proceedings by that party until an order for discovery is obeyed.? [?] (3) An order dismissing the action, or any party of the action, of that party.? [?] (4) An order rendering a judgment by default against that party.?
?The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse.? [Citations.]? The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery, and, in choosing a sanction, should attempt to tailor the sanction to the harm caused by the withheld discovery.? [Citation.]? The trial court cannot impose sanctions for misuse of the discovery process as a punishment.? [Citations.]?? (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)
?The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.? ?Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.? [Citation.]?? If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.? ?A decision to order terminating sanctions should not be made lightly.? But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.?? [Citation.]?? (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992.)
Analysis
Gunther contends that issue, evidence, or terminating sanctions are appropriate because of the misconduct of Plaintiffs? counsel with respect to Plaintiffs? depositions.? Specifically, refusing to produce plaintiff Henry for deposition and making meritless objections based on privacy and relevance during plaintiff Cindy?s deposition.? However, such conduct does not rise to the level of imposing issue, evidence, or terminating sanctions.? Gunther has not shown that lesser sanctions (i.e., monetary sanctions) could curb any discovery abuse.? Nor does there appear to be any history of discovery abuse between these parties.? For example, there is no evidence that Plaintiffs have willfully violated any Court orders to warrant imposing non-monetary sanctions.? Also, the fact that defendant Williams was dismissed from the case by the sustaining of a demurrer is not evidence that any history of discovery abuse exists between Plaintiffs and Gunther.? Nor was it unlawful for Plaintiffs to suspend Cindy?s deposition to seek a protective order which is expressly permitted under Code of Civil Procedure section 2025.420.? Therefore, at this point, the Court finds no basis to impose issue, evidence or terminating sanctions against Plaintiffs.
Accordingly, the request for contempt, issue, evidence and terminating sanctions is DENIED.
?
Requests for Monetary Sanctions
With respect to the motion for protective order, Plaintiffs request an award of monetary sanctions in the amount of $2,715.? However, Plaintiffs did not prevail on the motion.? Furthermore, the Notice of Motion fails to request sanctions against Gunther or his counsel.? (See Code Civ. Proc., ? 2023.040 [?A request for sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.?].)? Therefore, the request for monetary sanctions is DENIED.
With respect to the motion to compel depositions, Gunther only partially prevailed on the motion.? (See Code Civ. Proc., ? 2025.450, subd. (g)(1).)? Thus, the request for monetary sanctions is GRANTED IN PART in the amount of $490 which includes time spent preparing the motion, the filing fee for the motion and the court reporter fee.? Plaintiffs shall pay this amount in sanctions to counsel for Gunther within 20 calendar days of this Order.
Plaintiffs? request for monetary sanctions in opposition to the motion to compel depositions is DENIED as Plaintiffs were not substantially justified in opposing the motion.
[1] The Court refers to Henry Pinheiro and Cindy Pinheiro by their first names for purposes of clarity.? No disrespect is intended.? (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
[2] The Court will separately address whether Gunther is entitled to monetary sanctions.