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Tentative Ruling
Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

John Schmidt et al vs County of Santa Barbara et al

Case No: 1385226
Hearing Date: Tue Jul 30, 2013 9:30

Nature of Proceedings: Motion Protective Order

Motion for Protective Order; Request for Sanctions RULING Petitioner’s motion for protective order is granted. CHP is prohibited from taking the depositions of Han Wang and Antony Mascovich absent further order of this Court. The request for sanctions is denied. BACKGROUND On May 1, 2011, petitioner John J. Schmidt (“Schmidt”) was arrested by the California Highway Patrol (“CHP”) and charged with driving under the influence. The District Attorney subsequently declined to file a criminal complaint against Schmidt, but Schmidt’s records were never updated by CHP to reflect that he had been detained instead of arrested. Schmidt was also never issued a certificate of detention by CHP. Penal Code Section 849.5 provides that in any case in which a person is arrested and released and no accusatory pleading is filed charging the person with an offense, the arrest shall be deemed “a detention only.” Penal Code Section 851.6(b) provides for a certificate of detention to be issued in such cases. On May 10, 2012, Schmidt filed a first amended petition against CHP to obtain a writ of mandate ordering respondent to comply with Penal Code Sections 849.5 and 851.6(b). Schmidt seeks to have his petition certified as a class action. Similar class action petitions have been filed by two other individuals against local law enforcement agencies. One case, entitled Han Wang v. County of Santa Barbara, Santa Barbara Superior Court Case No. 1401697, involves allegations against the Santa Barbara County Sheriff’s Department. The other case, entitled Antony Mascovich v. University of California Regents, Santa Barbara Superior Court Case No. 1401677, involves allegations against the UCSB Police Department. The original petition in this case, filed on February 23, 2012, named Schmidt, Wang, and Mascovich as petitioners. Wang and Mascovich later decided to file separate class action petitions against the agencies that arrested them and they are no longer parties to this action. All three class action petitions allege that petitioners did not receive certificates of detention from the law enforcement agency responsible for their arrests, although no accusatory pleading charging them with an offense was ever filed by the District Attorney. The three cases have been deemed related. CHP has advised Schmidt that it would like to depose Wang and Mascovich. Schmidt opposes having these two witnesses deposed as part of this action and moves for a protective order. ANALYSIS The court has discretion to issue a protective order prohibiting the taking of a deposition upon a showing of good cause. Code of Civil Procedure Section 2025.420, subdivision (a), provides: “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.” Section 2025.420, subdivision (b), further provides: “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. This protective order may include, but is not limited to, one or more of the following directions: “(1) That the deposition not be taken at all.” Schmidt asserts that good cause exists for issuing a protective order prohibiting the depositions of both Wang and Mascovich because neither deposition would lead to the discovery of evidence that would be relevant to the current proceedings. The sole purpose of the depositions, Schmidt argues, is to annoy, embarrass, oppress, and unduly burden the deponents. There are only two evidentiary hearings to be held in the case. The first is the motion for class certification, which will determine whether there is an ascertainable class and a well-defined community of interest among the class members. See, Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326. The second is the trial on the merits, which will determine whether CHP should be ordered to comply with Penal Code Sections 849.5 and 851.6(b). Schmidt asserts that information obtained from either Wang or Mascovich would not be relevant to either hearing, nor would it assist CHP in preparation for the hearings, and therefore there is no legitimate discovery purpose for the depositions. CHP opposes Schmidt’s motion, arguing that the depositions are necessary to ascertain the existence or nonexistence of a certifiable class. “[E]ach party [in a putative class action] should have an opportunity to conduct discovery on class action issues before its documents in support of or in opposition to the motion [for class certification] must be filed.” Carabini v. Superior Court (1994) 26 Cal.App.4th 239, 244. California Rules of Court, Rule 3.768, subdivision (a), specifically authorizes the taking of depositions of unnamed class members. It states: “The following types of discovery may be sought, through service of a subpoena and without a court order, from a member of a class who is not a party representative or who has not appeared: “(1) An oral deposition; “(2) A written deposition; and “(3) A deposition for production of business records and things.” CHP argues that it should be allowed to explore whether the circumstances underlying the arrests of other class members were different, which would preclude class certification. Possible areas of inquiry include, for example, “What were other class members arrested for? Under what circumstances were they released from custody? What action did the prosecutor take, and when?” (Opp., p. 5:17-18.) Wang and Mascovich, as well as the other class members, are the best individuals to provide answers to these questions because they have personal knowledge of the events surrounding their own arrests. Accordingly, CHP argues, it should be allowed to depose Wang and Mascovich to determine whether there are common questions of law and fact between the three cases, otherwise it will have insufficient information to either oppose or accede to class certification. The Court is not persuaded by these arguments. The proposed class as defined in Schmidt’s first amended petition is “[a]ll individuals who were arrested by Respondent CHP at Goleta, whose files were rejected for filing of an accusatory pleading by the Santa Barbara County District Attorney’s Office from January 1, 1975 to date.” (FAP, ¶11.) Thus, neither Wang nor Mascovich is a potential class member in this case. Wang and Mascovich were arrested by entirely different law enforcement agencies and therefore the facts and circumstances of their arrests are totally irrelevant to the claims made against CHP by Schmidt, notwithstanding that all three petitioners allege similar injuries. See, Baltimore Football Club, Inc. v. Superior Court (1985) 171 Cal.App.3d 352, 359 (“typicality requirement [of a class representative] is not fulfilled merely because the plaintiffs allege that they suffered injuries similar to those of other parties at the hands of other defendants”). In short, the facts and circumstances of Wang and Mascovich’s cases have no bearing on whether CHP acted in violation of Penal Code Sections 849.5 and 851.6(b) in this case. CHP complains that the Code of Civil Procedure does not authorize parties to bring motions to prohibit discovery that might occur (i.e., where the discovery has not yet been formally served, as in this case). However, CHP’s counsel has acknowledged that Wang and Mascovich have been located, that she has selected dates and locations for their depositions, and that she has requested that deposition subpoenas be served on the two witnesses. (James Dec., ¶9.) Accordingly, the motion for protective order is not premature. Based on the foregoing, the Court will grant Schmidt’s motion for protective order prohibiting the taking of the depositions of Wang and Mascovich. The Court fails to see how discovery of non-class members is warranted. Wang and Mascovich should not be compelled to answer questions about their arrests, their histories and backgrounds, and why they filed their petitions when none of their answers will further CHP’s defense of the case. Schmidt has requested monetary sanctions against CHP based on respondent’s “unreasonable refusal to provide any reason for the taking of the depositions of Wang and Mascovich.” The request will be denied. The Court does not find that sanctions are warranted under the circumstances. Code Civ. Proc. §2025.420(h). Both sides presented reasonable arguments in support of their positions.