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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Kim Levine et al vs Janet Berschneider et al

Case No: 17CV03278
Hearing Date: Fri Jan 05, 2018 9:30

Nature of Proceedings: Motion: Protective Order; Sanctions

Tentative Ruling:

1. The court grants defendant Jenna Berg’s motion for monetary sanction and orders John B. Richards to pay $900 to the Law Offices of John J. Thyne III on or before January 19, 2018. The court expects to hear at the February 2 CMC that the sanction amount has been paid in full.

2. The court grants third party witness Michael Steady’s motion for a protective order and orders that plaintiffs shall not depose Michael Steady. The court orders that Kim Levine and her attorney, John R. Richards, shall pay Michael Steady’s counsel, Daniella T. Felix, the sum of $2,564.50.

 

Background: Plaintiff Kim Levine, individually and as guardian ad litem for Santo Massine (collectively “Levine”), brings this action against defendants Janet Berschneider, aka Jenna Berg, in her capacity as trustee of the Berg Family Trust (“Berg”); and Bungalow LLC (Bungalow). Plaintiffs began residing on the lower floor of property at 322 East Arrellaga Street in Santa Barbara on February 14, 2017. Plaintiffs allege that they suffered adverse health symptoms as a result of mold in the premises. The causes of action in the complaint are: 1) negligence (general, failure to disclose latent defect, per se, failure to perform covenant to repair); 2) negligent infliction of emotional distress; 3) breach of implied warranty of habitability (common law); 4) breach of implied warranty of habitability (statutory); 5) private nuisance; 6) breach of contract.

Berg and Bungalow filed a cross-complaint against Kim Levine for breach of contract, negligence, and fraud/intentional deceit. CMC is scheduled for February 2, 2018.

Motion for Monetary Sanction: Berg seeks a monetary sanction against Levine and her lawyer, John B. Richards. Berg and her lawyer showed up at a deposition that Richards noticed but for which he did not serve a subpoena on the third-party deponent. Levine opposes the motion.

“If a deponent does not appear for a deposition because the party giving notice of the deposition failed to serve a required deposition subpoena, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party, or the attorney for that party, or both, in favor of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP § 2025.440(a).

On October 30, 2017, Levine served on Berg a notice of the deposition of Joel Morelos to take place on November 20 at Richards’ office. Morelos performed work at the subject premises on behalf of Berg. Richards failed to serve the deposition subpoena on Morelos because Morelos had been incarcerated since October 3. Richards did not inform Berg and her lawyer that the deposition was not going forward as noticed. Berg and her lawyer, Lacy L. Taylor, appeared at Richard’s office on November 20. Berg was informed by a member of Richards’ legal team that there would be no deposition of Morelos because they were unable to serve him. Richards says that Taylor was not there but he does not say how he knows this and indicates that, with respect to some of the facts in his declaration, he “believes them to be true.” The court is satisfied with Taylor’s statement that she did go to Richards’ office for the deposition.

Richards argues that he acted with substantial justification because Berg has employed Morelos as a handyman/plumber and she knew or should have known he was incarcerated and could not be deposed. Richards appears to ask the court to find the following scenario okay: Any lawyer who litigates with Richards and receives from Richards a notice of deposition of a deponent whom that lawyer’s client knows must determine on her/his own if that deponent has been served with a subpoena and is available to be deposed; and Richards has no responsibility to communicate that the deposition he noticed will not go forward. The court has a simple response: It is not okay.

The court will impose a monetary sanction. Taylor says she spent 2.5 hours preparing for the deposition and another half hour showing up. She asks for $900 in attorney fees—a rate of $300/hr. Richards says that he intends to take Morelos’ deposition when he gets out of jail, so the deposition preparation would be necessary in any event. Richards does not say when that will be. Richards says he will not attempt to take the deposition while Morelos is in jail by utilizing the procedure set forth in CCP §§ 1995-1997. Some or all of stale preparation for the deposition will have to be redone or at least refreshed. The court will order Richards, and not his client, to pay Berg’s counsel $900.

In her declaration, Taylor says: “Ms. Berg had to cancel the first several days of her planned holiday vacation in order to attend the deposition. Ms. Berg’s total out-of-pocket expenses for this deposition, not including her missed vacation, were $900.” Taylor does not say how she knows this and does not provide any detail regarding Ms. Berg’s expenses. There is no declaration from Berg. The court will not order any reimbursement of Ms. Berg’s expenses for lack of proof.

The court grants defendant Jenna Berg’s motion for monetary sanction and orders John B. Richards to pay $900 to the Law Offices of John J. Thyne III on or before January 19, 2018. The court expects to hear at the February 2 CMC that the sanction amount has been paid in full.

On November 15, Levine issued a deposition subpoena for personal appearance and production of documents. Levine asked Steady to produce: “All Writings as defined by Evidence Code Sec. 250 which refer, relate or pertain in any way to any and all work performed at your residence in North Carolina, including but not limited to, any and all Mold inspection(s), testing(s) remediation and/or clearance work from 1/1/2000 to present.”

Motion for Protective Order: Third-party witness Michael Steady moves to quash or limit the deposition subpoena Levine served on him on grounds that the discovery sought is not reasonably calculated to lead to the discovery of admissible evidence; the discovery is unreasonable, oppressive, unduly burdensome, and expensive; Steady has no documents or information relevant to the document demand in the subpoena; Steady has not lived at the property that is the subject of this litigation in over seven years and is prevented from accessing the subject property by a restraining order for at least another ten years; and Steady has no information relevant to the current action before the court. He also asks for a monetary sanction against Levine and her counsel in the amount of $2,564.50.

Levine opposes the motion. She contends that Steady has information relevant to whether it was reasonable for Berg to wait for more than a month to have the property inspected for mold. She says that Steady may confirm or contradict the Berg’s testimony and Levine should be allowed to confirm the veracity of Berg’s deposition testimony. Levine asks the court to sanction Steady and his lawyer in the amount of $2,000.

Analysis:

1. Protective Order: On motion, a court may make an order quashing a deposition subpoena entirely, “modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” CCP § 1987.1(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(a).

“[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” Fairmont Ins. Co. v. Superior Court, 22 Cal.4th 245, 255 (2000). “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation]” Lipton v. Superior Court, 48 Cal.App.4th 1599, 1611-1612 (1996). Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. CCP § 2017.010. In light of “the liberal policies underlying the discovery procedures, doubts as to relevance should generally be resolved in favor of permitting discovery.” Colonial Life & Accident Ins. Co. v. Superior Court, 31 Cal.3d 785, 790 (1982). Doubts as to relevance should generally be resolved in favor of permitting discovery. Williams v. Superior Court, 3 Cal.5th 531, 542 (2017).

Steady says that he and Berg left the North Carolina residence in 1998. [Steady Dec. ¶4] Necessarily, he has no documents regarding that property from 2000 to present. He also says that he has no documents regarding that property at all. Therefore, the document request in the subpoena seeks information that does not exist and cannot lead to the discovery of admissible evidence. It is also true that there is no burden on Steady based on the document request. The only burden would be sitting for a deposition.

Levine contends that the inquiry into the North Carolina situation is relevant to Berg’s experience with mold exposure and her knowledge of the dangers of mold. Counsel for Levine states that, at her deposition, Berg testified: In approximately 1996-1997, the house in which she resided with her then husband, Steady, was flooded by a hurricane. [Richards Dec. ¶1] Berg suffered adverse health problems due to exposure to the mold. [Richards Dec. ¶1] She became so seriously ill that she, Steady, and their children were forced to leave the state for Texas, where Berg received extensive medical treatment for the adverse health symptoms caused by her exposure to mold in North Carolina. [Richards Dec. ¶¶2, 3] (No transcript of the deposition has been submitted to the court.)

At most, Steady’s testimony would be cumulative to what Levine has already learned from Berg. “As between parties to litigation and nonparties, the burden of discovery should be placed on the latter only if the former do not possess the material sought to be discovered. An exception to this may exist where a showing is made the material obtained from the party is unreliable and may be subject to impeachment by material in possession of the nonparty.” Calcor Space Facility, Inc. v. Superior Court, 53 Cal.App.4th 216, 225 (1997).

If Levine’s counsel’s summary of what he learned in Berg’s deposition is accurate, then Berg has provided the information regarding the health problems she suffered from mold exposure in North Carolina. There is no need to seek Steady’s testimony to impeach Berg because Berg has supplied the information Levine wants. If Berg had denied any prior mold exposure or denied suffering any health problems from mold exposure in North Carolina, then Steady’s deposition might be warranted. But, under the present facts, it is not.

Requiring Steady to sit for a deposition for the purpose of providing information Levine already has or to provide information Steady does not have would subject Steady to unwarranted annoyance, oppression, and undue burden. The court will grant Michael Steady’s motion for a protective order and order that plaintiffs shall not depose Michael Steady.

2. Monetary Sanction: “[T]he court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” CCP § 1987.2(a). “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.” CCP § 2025.420(h). The court may award reasonable expenses, including attorney fees, as a monetary sanction. CCP § 2023.030(a).

Levine has not demonstrated that the subpoena for Steady’s deposition could lead to the discovery of admissible evidence. In fact, the court finds that Levine’s opposition includes a declaration demonstrating that the deposition is unnecessary. Levine and her counsel have not acted with substantial justification. The circumstances warrant a monetary sanction.

Steady’s counsel has spent or will spend 12.7 hours on the motion, reply, and at the hearing. At $300/hr, that would total $3,810 in attorney fees. However, counsel has limited her request for fees to $2,500. The filing fee for the motion was $64.50. The court finds the sum requested reasonable. The court orders that Levine and her attorney, John R. Richards, shall pay Michael Steady’s counsel, Daniella T. Felix, the sum of $2,564.50.

Order: The court grants third party witness Michael Steady’s motion for a protective order and orders that plaintiffs shall not depose Michael Steady. The court orders that Kim Levine and her attorney, John R. Richards, shall pay Michael Steady’s counsel, Daniella T. Felix, the sum of $2,564.50.

Other Matters: Steady and Berg, in a declaration, make serious allegations regarding counsel for Levine. These did not influence the court’s ruling above but they bear addressing.

First, Steady says that Richards told Steady’s lawyer that Steady said that his son’s illness may have been caused by mold at the North Carolina residence when Steady never said that. [Steady Dec. 11] Richards does not deny this or address this at all in his declaration.

Steady says that he is concerned that Richards wants to depose him solely for the purpose of harassing him and causing him personal pain and embarrassment. He bases this, in part, on what Berg said about Richards’ conduct at depositions. She says that, at her deposition, Richards, chastised, insulted, mocked, yelled at, and physically intimidated her. [Berg Dec. ¶2] She says that Richards insinuated that she was represented by inadequate counsel and said she was going to be on the hook for $500,000 in attorney fees because she was going to lose this case. [Berg Dec. ¶3] During Levine’s deposition on November 8, “Richards yelled at me for several minutes, ignoring my requests for him to stop. At one point, while yelling, Mr. Richards rose from his seat, leaned across the table, and waived his hands in front of my face while mocking me. He repeatedly, and in a high-pitched voice, imitating my plea that he stop yelling, said, ‘stop, stop,’ as if he was making fun of the situation. [Berg Dec. ¶4]

No one brought this to the court’s attention previously. Again, there is no transcript before the court. Richards does not deny this or address it at all in his declaration. The court makes no finding one way or the other. However, for future reference, if a lawyer behaves in the way described, the appropriate action is to terminate the deposition and seek a protective order along with sanctions, including a sanction paid to the court.

 
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