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This case was last updated from Los Angeles County Superior Courts on 01/16/2021 at 23:16:04 (UTC).

WADE ROBSON VS DOE 1, ET AL

Case Summary

On 05/10/2013 WADE ROBSON filed a Personal Injury - Other Personal Injury lawsuit against DOE 1. This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The Judges overseeing this case are MITCHELL L. BECKLOFF, AMY D. HOGUE and DANIEL J. BUCKLEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8502

  • Filing Date:

    05/10/2013

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Santa Monica Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MITCHELL L. BECKLOFF

AMY D. HOGUE

DANIEL J. BUCKLEY

 

Party Details

Plaintiffs and Petitioners

ROBSON, WADE

ROBSON WADE

Plaintiff and Appellant

ROBSON WADE

Defendants and Respondents

DOE 1

DOE 2

DOE 3

DOE 4-50

MJJ PRODUCTIONS, INC.

MJJ VENTURES, INC.

MJJ PRODUCTIONS INC.

MJJ VENTURES ONC.

MJJ VENTURES INC.

Not Classified By Court

JONATHAN SPENCE

TABITHA ROSE MARKS

LILY CHANDLER

MARION FOX

MARKS TABITHA ROSE

CHANDLER LILY

AMOS PICTURES LTD.

Interested Parties and Not Classified By Court

FOX MARION

MARKS TABITHA ROSE

SPENCE JONATHAN

CHANDLER LILY

2 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GRADSTEIN & MARZANO

GRADSTEIN & MARZANO, P.C.

MANLY MCGUIRE & STEWART

SLATER MATTHEW

& FINALDI MANLY MCGUIRE

FINALDI VINCE WILLIAM

Defendant and Respondent Attorneys

HOFFMAN SABBAN & WATENMAKER

KINSELLA WEITZMAN ISER KUMP & ALDISERT

WEITZMAN, HOWARD, ESQ.

WEITZMAN HOWARD ESQ.

Not Classified By Court Attorney

HOLMES JEFFERY

Other Attorneys

FREEDMAN & TAITELMAN

THARPE & HOWELL LLP

HARDY SEAN MICHAEL

 

Court Documents

Legacy Document - LEGACY DOCUMENT TYPE: REPLY

6/12/2017: Legacy Document - LEGACY DOCUMENT TYPE: REPLY

Request for Judicial Notice

8/31/2017: Request for Judicial Notice

Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION

9/15/2017: Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION

Legacy Document - LEGACY DOCUMENT TYPE: NOTICE OF MOTION

10/18/2017: Legacy Document - LEGACY DOCUMENT TYPE: NOTICE OF MOTION

Legacy Document - LEGACY DOCUMENT TYPE: NOTICE OF MOTION

10/20/2017: Legacy Document - LEGACY DOCUMENT TYPE: NOTICE OF MOTION

Legacy Document - LEGACY DOCUMENT TYPE: EX-PARTE APPLICATION

10/25/2017: Legacy Document - LEGACY DOCUMENT TYPE: EX-PARTE APPLICATION

Legacy Document - LEGACY DOCUMENT TYPE: REPLY

8/10/2018: Legacy Document - LEGACY DOCUMENT TYPE: REPLY

Notice Re: Continuance of Hearing and Order

7/10/2020: Notice Re: Continuance of Hearing and Order

Motion for Reconsideration - MOTION FOR RECONSIDERATION OF ORDER GRANTING NONPARTY MARION FOX'S MOTION FOR PROTECTIVE ORDER AND REQUEST FOR SANCTIONS

10/5/2020: Motion for Reconsideration - MOTION FOR RECONSIDERATION OF ORDER GRANTING NONPARTY MARION FOX'S MOTION FOR PROTECTIVE ORDER AND REQUEST FOR SANCTIONS

APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL

3/8/2018: APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL

NOTICE OF FILING OF NOTICE OF APPEAL

3/9/2018: NOTICE OF FILING OF NOTICE OF APPEAL

NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL (UNLIMITED CIVIL)

3/27/2018: NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL (UNLIMITED CIVIL)

Notice of Case Reassignment and Order for Plaintiff to Give Notice

11/30/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

APPLICATION TO AMEND THE COMPLAINT TO SUBSTITUTE THE NAME OF THE DEFENDANTS FOR THE FICTITIOUS DESIGNATIONS DOE 2 AND DOE 3

1/30/2014: APPLICATION TO AMEND THE COMPLAINT TO SUBSTITUTE THE NAME OF THE DEFENDANTS FOR THE FICTITIOUS DESIGNATIONS DOE 2 AND DOE 3

PLAINTIFF WADE ROBSON'S REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENA DUCES TECUM; ETC

9/24/2014: PLAINTIFF WADE ROBSON'S REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENA DUCES TECUM; ETC

SUPPLEMENTAL DECLARATION OF MARYANN R. MARZANO IN SUPPORT OF PLAINTIFF WADE ROBSON'S OPPOSITION TO DEFENDANTS MJJ PRODUCTIONS, INC. AND MJJ VENTURES, INC.'S MOTION FOR A PROTECTIVE ORDER; AND EXHIBIT

10/21/2014: SUPPLEMENTAL DECLARATION OF MARYANN R. MARZANO IN SUPPORT OF PLAINTIFF WADE ROBSON'S OPPOSITION TO DEFENDANTS MJJ PRODUCTIONS, INC. AND MJJ VENTURES, INC.'S MOTION FOR A PROTECTIVE ORDER; AND EXHIBIT

PLAINTIFF''S NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS'' SUBPOENA DUCES TECUM FOR PRODUCTION OF BUSINESS RECORDS TO DR. ; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MATTHEW A. SLATER

6/17/2015: PLAINTIFF''S NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS'' SUBPOENA DUCES TECUM FOR PRODUCTION OF BUSINESS RECORDS TO DR. ; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MATTHEW A. SLATER

SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO QUASH DEFENDANTS' SUBPOENA DUCES TECUM FOR PRODUCTION OF BUSINESS RECORDS TO DR.

6/17/2015: SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO QUASH DEFENDANTS' SUBPOENA DUCES TECUM FOR PRODUCTION OF BUSINESS RECORDS TO DR.

304 More Documents Available

 

Docket Entries

  • 06/14/2021
  • Hearing06/14/2021 at 09:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Jury Trial

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  • 05/27/2021
  • Hearing05/27/2021 at 09:00 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Final Status Conference

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  • 04/09/2021
  • Hearing04/09/2021 at 08:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Hearing on Motion to Quash Subpoenas Duces Tecum

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  • 02/24/2021
  • Hearing02/24/2021 at 08:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Hearing on Motion for Summary Judgment

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  • 01/13/2021
  • Docketat 08:30 AM in Department M; Hearing on Motion for Judgment on the Pleadings - Not Held - Taken Off Calendar by Party

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  • 12/11/2020
  • DocketNotice of Ruling; Filed by Wade Robson (Plaintiff)

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  • 12/07/2020
  • DocketMotion for Summary Judgment; Filed by MJJ Productions, Inc. (Defendant); MJJ Ventures, Inc. (Defendant)

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  • 12/07/2020
  • DocketBrief (Compendium of Evidence ISO Motion for Summay Judgment); Filed by MJJ Productions, Inc. (Defendant); MJJ Ventures, Inc. (Defendant)

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  • 12/07/2020
  • DocketSeparate Statement; Filed by MJJ Productions, Inc. (Defendant); MJJ Ventures, Inc. (Defendant)

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  • 12/04/2020
  • Docketat 09:00 AM in Department M; Hearing on Motion for Reconsideration (Of Order Granting Non-Party Jonathan Spence's Motion For Protective Order) - Held - Motion Denied

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659 More Docket Entries
  • 06/13/2013
  • Docketat 1:30 PM in Department 92; (Motion Hearing; Vacated) -

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  • 06/13/2013
  • DocketMinute order entered: 2013-06-13 00:00:00; Filed by Clerk

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  • 06/06/2013
  • Docketat 2:00 PM in Department 1; Court Order (Court Order; Transferred to different departmnt) -

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  • 06/06/2013
  • DocketMinute order entered: 2013-06-06 00:00:00; Filed by Clerk

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  • 05/31/2013
  • DocketNOTICE OF RELATED CASE

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  • 05/31/2013
  • DocketNotice of Related Case; Filed by Plaintiff/Petitioner

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  • 05/10/2013
  • DocketPLAINTIFF WADE ROBSONS NOTICE OF FILING UNDER SEAL

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  • 05/10/2013
  • DocketNotice of Motion; Filed by Plaintiff/Petitioner

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  • 05/10/2013
  • DocketNotice; Filed by Plaintiff/Petitioner

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  • 05/10/2013
  • DocketComplaint; Filed by Wade Robson (Plaintiff)

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Tentative Rulings

Case Number: BC508502    Hearing Date: April 26, 2021    Dept: M

CASE NAME: WADE ROBSON v. DOE 1 ET AL

CASE NO.: BC508502

MOTION: Motion for Summary Judgment, or in the Alternative, Summary Adjudication

HEARING DATE: 04/20/2021

Basis for Motion

Defendants seek summary judgment, or in the alternative, summary adjudication as follows:

  1. All causes of action fail as a matter of law, because there is no triable issue as to any material fact sufficient to permit a rational trier of fact to conclude that Defendants’ allegedly tortious acts or omissions were “a legal cause of the [alleged] childhood sexual assault,” Code Civ. Proc. §§ 340.1(a)(2) & 340.1(a)(3), in order for the causes of action to come within the scope of subdivisions (a)(2) and (a)(3) of Code of Civil Procedure section 340.1 (and the causes of action are therefore untimely); and/or as required by the elements of the substantive causes of action themselves (all of which require legal causation, i.e., proximate causation).

  2. The Second through Fifth Causes of Action, all of which are based in negligence, fail as a matter of law because there is no triable issue as to any material fact sufficient to permit a rational trier of fact to conclude that Defendants had duties of care towards Plaintiff as alleged in the Complaint.

  3. The Second Cause of Action for “Negligence” in the Complaint based on the negligence per se doctrine fails as a matter of law, because there is no triable issue as to any material fact sufficient to permit a rational trier of fact to conclude that any of the pertinent employees of Defendants were mandated reporters under the Child Abuse and Neglect Reporting Act (CANRA), Penal Code §§ 11166 et seq. in effect at the time. Also, the negligence per se doctrine does not create a duty of care in any event; it only sets the standard of care when duty has first been established independently. There is no duty of care here.

  4. The Third and Fourth Causes of Action for “Negligent Retention/Hiring” and “Negligent Supervision” in the Complaint fail as a matter of law, because there is no triable issue as to any material fact sufficient to permit a rational trier of fact to conclude that Defendants had the duty or ability to decline to hire Michael Jackson in the first place, to fire him or to supervise him. There is also no triable issue as to any material fact sufficient to permit a rational trier of fact to conclude that the alleged tortious conduct by Jackson against Plaintiff arose out of or was generated by the employment relationship between Jackson and the Defendants.

  5. The Fifth Cause of Action for “Negligent Failure to Train, Warn, or Educate” fails as a matter of law, because there is no triable issue as to any material fact sufficient to permit a rational trier of fact to conclude that Defendants had a duty to train, warn or educate Plaintiff, his parents, the authorities, Defendants’ employees, or anyone else about the dangers of sexual abuse generally or about the alleged dangers of Michael Jackson specifically.

  6. The First Cause of Action for Intentional Infliction of Emotional Distress (“IIED”) fails as a matter of law, because there is no triable issue as to any material fact sufficient to permit a rational trier of fact to conclude that Defendants themselves (as opposed to, allegedly, Michael Jackson personally) engaged in extreme and outrageous conduct. Also, this cause of action fails because, as alleged by Plaintiff, it is a claim for “direct perpetrator liability” and is therefore not cognizable under Code of Civil Procedure section 340.1 (and is therefore untimely). There is no triable issue as to any material fact showing otherwise.

  7. The Sixth Cause of Action for Breach of Fiduciary Duty fails as a matter of law, because there is no triable issue as to any material fact sufficient to permit a rational trier of fact to conclude that Defendants were in a fiduciary relationship with Plaintiff and/or that fiduciary duties were breached.

In addition, and in the alternative, Defendants move for judgment on the pleadings as to each cause of action because they contend that the operative Complaint does not, and cannot, allege facts sufficient to constitute valid and timely causes of action for each cause of action.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) 

“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c(b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.” (Code Civ. Proc., § 437b(b)(3) (emphasis added).)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  The moving party is entitled to summary judgment if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar v. Atlantic Richfiend Co. (2001) 25 Cal.4th 826, 843.)  

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) Pursuant to Code of Civil Procedure section 437c(p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.

When deciding whether to grant summary judgment, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.  (Avivi, 159 Cal. App. 4th at 467.)   

“A moving defendant now has two means by which to shift the burden of proof under subdivision (o)(2) of section 437c to the plaintiff to produce evidence creating a triable issue of fact. The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon…. Alternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598. See also Code Civ. Proc., § 437c(p)(2).) A moving defendant must show that plaintiff cannot reasonably obtain evidence to prove a cause of action, which is more than simply arguing that there is an absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., § 437c(f)(1).)

EVIDENTIARY OBJECTIONS[1]

Plaintiff submits 24 objections to the evidence offered in support for the Motion for Summary Judgment.

Plaintiff submits objections to the declaration of John Branca, (1-15) the testimony of Jolie Levine (16-19) and Gayle Goforth (20), and certain exhibits (21-24)

Declaration of John Branca

Objection no. 1 – sustained

Objection no. 2 – overruled

Objection no. 3 – sustained in part “after he spoke to Paul McCarthy about the subject.”

Objection no. 4 – sustained

Objection no. 5 – sustained

Objection no. 6 – overruled.

Objection no. 7 – overruled.

Objection no. 8 – overruled.

Objection no. 9 – overruled.

Objection no. 10 – overruled.

Objection no. 11 – overruled.

Objection no. 12 – overruled.

Objection no. 13 – overruled.

Objection no. 14 – overruled.

Objection no. 15 – overruled.

Deposition testimony of Jolie Levine

Objection no. 16 – overruled.

Objection no. 17 – overruled

Objection no. 18 – overruled

Objection no. 19 – overruled.

Deposition testimony of Gayle Goforth

Objection no. 20 – overruled.

Objections to exhibits

Objection no. 21 – overruled (Defs.’ Exhibit 18.)

Objection no. 22 – overruled (Defs.’ Exhibit 19.)

Objection no. 23 – overruled (Defs.’ Exhibit 21.)

Objection no. 24 – sustained (Defs.’ Exhibit 22.)

Defendants submits 14 objections to the evidence offered in opposition to the Motion for Summary Judgment.

Declaration of Alex Cunny

Objection no. 1 – sustained. (Pl.’s Exhibit 22)

Objection no. 2 – sustained. (Pl.’s Exhibit 23)

Objection no. 3 – sustained. (Pl.’s Exhibit 24)

Objection no. 4 – sustained. (Pl.’s Exhibit 25)

Objection no. 5 – sustained. (Pl.’s Exhibit 26)

Objection no. 6 – sustained. (Pl.’s Exhibit 31)

Objection no. 7 – sustained. (Pl.’s Exhibit 32)

Objection no. 8 – sustained. (Pl.’s Exhibit 38.)

Objection no. 9 – sustained. (Pl.’s Exhibit 39.)

Objection no. 10 – sustained. (Pl.’s Exhibit 40.)

Objection no. 11 – sustained. (Pl.’s Exhibit 41.)

Objection no. 12 – sustained. (Pl.’s Exhibit 42.)

Objection no. 13 – sustained. (Pl.’s Exhibit 44.)

Objection no. 14 – sustained. (Pl.’s Exhibit 45.)

Request for judicial notice

Plaintiff requests judicial notice of Exhibits 35, 36, 41, 44, 48, and 50.

The Court takes judicial notice of Exhibit 35. The Court takes judicial notice that Exhibit 36 exists but does not take judicial notice of hearsay statements contained therein. The Court takes judicial notice of Exhibits 48 and 50 as court records but does not take judicial notice of hearsay statements contained with the Court’s rulings. The Court denies the request for judicial notice as to Exhibits 41 and 44 since the Court sustained evidentiary objections to these documents.

Analysis

Second, third, fourth, and fifth causes of action - Negligence claims

Plaintiff Wade Robson alleges four distinct negligence causes of action, including (1) the second cause of action for negligence, (2) the third cause of action for negligent supervision, (3) the fourth cause of action for negligent retention/hiring, and (4) the fifth cause of action for negligent failure to warn. The elements of negligence are (1) the existence of a legal duty of care, (2) breach of that duty, and (3) proximate cause resulting (4) in an injury. (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Defendants argue that they are entitled to summary judgment because Plaintiff cannot prove proximate cause. Defendants further argue that under section 340.1, “legal cause” is required, which cannot be proven in this case. “In an action for recovery of damages suffered as a result of childhood sexual assault . . . for any of the following actions: . . . (2) An action for liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff. [or] (3) An action for liability against any person or entity if an intentional act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.” (Code Civ. Proc., § 340.1(a)(2), (3).) “Proximate cause is legal cause, as distinguished from the layman's notion of actual cause, and is always, in the first instance, a question of law.” (Tate v. Canonica (1960) 180 Cal.App.2d 898, 901.) However, “It becomes a question of fact when conflicting inferences or conclusions can be drawn from the evidence within the area of proximate cause as legally defined.” (Ibid.)

In opposition, Robson argues that Defendants attempt to provide a “cart before the horse” analysis with respect to “legal cause.” The Court agrees that it does not need to address the issue of legal cause unless the Court finds that there is a duty owed by the Corporations to Robson. Therefore, the Court first addresses Defendants’ duty arguments.

Defendants argue that they are entitled to summary judgment, or in the alternative, summary adjudication, on the negligence causes of action because Defendants did not owe Robson a legal duty. Defendants contend that there was no special relationship that would give rise to a legal duty for the Corporations to protect Robson from the alleged molestation, and as such, Defendants cannot be held liable for mere nonfeasance. In response, Robson argues that Civil Code section 1714 and the special relationship doctrine created a duty in this case. Robson argues that Defendants had an affirmative duty to protect him as a child from foreseeable sexual abuse from Jackson because of this special relationship. Robson’s basis for the special relationship is that Defendants’ hired Robson.

Duty is a question of law for the court. (Conti v. Watchtower Bible & Tract Society of New York, Inc. (2015) 235 Cal.App.4th 1214, 1226.) “‘[A]s a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.’” (Id. at 1226 [quoting Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129].) The “special relationship” doctrine is an exception to this general rule. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 627 [Citations omitted.].) “Special relationships also have defined boundaries. They create a duty of care owed to a limited community[.]” (Id. at 621.) For example, a duty arising out of a “special relationship” in the context of a university is limited and “extends to activities that are tied to the school’s curriculum but not to student behavior over which the university has no significant degree of control.” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 627.) “A basic requisite of a duty based on a special relationship is the defendant's ability to control the other person's conduct. [Citation.].’” K.G. v. S.B. (2020) 46 Cal.App.5th 625, 631 [quoting Smith v. Freund (2011) 192 Cal.App.4th 466, 473].) “The absence of an ability to control is fatal to a claim of legal responsibility.” (Todd v. Dow (1993) 19 Cal. App. 4th 253, 259.)

Defendants argue that there are no facts, or even disputed facts, that give rise to a special relationship between Robson and the Defendants. Defendants contend that the undisputed evidence demonstrates that the Corporations had no ability to control the behavior of Michael Jackson, and as a result, there is no special relationship. Defendant MJJ Productions was incorporated in California in 1979 as “Michael Jackson Productions, Inc.” and its name was changed to “MJJ Productions, Inc.” in 1982. (UF 6 [Branca Decl. ¶¶ 9-10, Exs. 1-4].) Jackson was MJJ Productions’ sole shareholder at all times until his death. (UF 7 [Branca Decl. ¶ 10; Ex. 21 ¶ 8].) MJJ Ventures was incorporated in 1991. (UF 8 [Branca Decl. ¶ 16; Exs. 6-9].) Jackson was also MJJ Ventures’ sole shareholder at all times until his death. (UF 9 [Branca Decl. ¶ 3; Ex. 22 ¶ 8].) Defendants argue and present undisputed evidence that during all times relevant to this case until June 1, 1994, Jackson was the sole director of both Corporations. (UF 46, 51 [Branca Decl. ¶¶ 12, 16; Exs. 3, 9].) Defendants also present evidence that on June 1, 1994, as sole shareholder and director of both Corporations, Jackson increased the size of the Board of Directors of both Corporations from one director to four directors, with Jackson, John Branca, Marshall Gelfand (Jackson’s business manager), and Sandy Gallin (Jackson’s talent manager) as the four directors of both Corporations. (UF 47, 52 [Branca Decl. ¶¶ 12, 18; Exs. 5, 10].)

In opposition, Plaintiff argues that the evidence demonstrates that Defendants did have control over Jackson and chose to not exert it. (Citing PMF 1-19.) In support of this position, Plaintiff relies upon evidence submitted by Defendants’ containing the governing language of MJJ Productions and MJJ Ventures, as well as the number of directors on the boards of each entity. (See PMFs 4 -10.). Plaintiffs argue that this shows that Defendants had the ability to control Jackson and chose not to exert it. Plaintiff also argues that certain employees of Defendants’ had the ability to control Jackson. Finally, Plaintiff contends that Defendants had a duty to protect foreseeable victims of child sexual abuse such as himself.

In reply, Defendants argue that this evidence does not create a triable issue of material fact as to control. Defendants argue that under Corporations Code section 603(d) and Corporations Code section 303(a), Jackson had the power to remove members of the respective boards at will because he was the sole shareholder of the companies. Corporations Code section 303 provides, “Any or all of the directors may be removed without cause if the removal is approved by the outstanding shares . . ..” (Corp. Code, § 303(a).). In support of this position that Jackson had complete control, Defendants point to Plaintiff’s own evidence that on prior occasions Jackson had in fact overruled two employees. (See Cunny Decl., Ex. 7 74:22-75:17 (Vol. 3).)

The issue for the Court on summary judgment/adjudication is whether Defendants have shifted the burden, and if so, whether Plaintiffs have raised a disputed issue of material fact as to whether Defendants owed Plaintiff a legal duty. The issue of legal duty in this matter centers on whether there are disputed facts as to whether Jackson had complete legal authority over Defendants, or whether Defendants could control Jackson’s business affairs or personal life. As set forth herein, the Court concludes that there are no disputed relevant facts as to this issue. A combination of the California Corporations Code, and the undisputed fact that Jackson was the sole director (until June 1994) and shareholder of the Corporations, leads the Court to conclude that Defendants had no actual ability to control Jackson. As the sole shareholder of both Defendants, Jackson had the sole authority to remove any and all of the board members without cause or notice, and reinstate himself as the sole board member. (Corp. Code §§ 303(a) and 603(a).) Thus, even when there were three additional board members appointed in 1994, they all served at the pleasure of Michael Jackson. Any attempts at discipline would be futile because Defendants had no legal ability to control Jackson. (Cf. Coit Drapery Cleaners Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1605 (in dicta, the court recognized the futility of a corporation attempting to discipline or supervise its majority shareholder who was also its president and chairman of the board.)

As to other employees exerting control over Jackson, Plaintiff’s evidence in support of this contention does not support that position, or create a material issue of disputed fact as to control. For instance, in PMF 15, Plaintiff states that “Defendants’ employees were required to follow Staikos’ [a employee of Defendants] instructions, even if Jackson himself gave different orders. Staikos’ orders controlled” and relies upon the testimony of Charli Michaels to support this position. Michaels’ testimony, however, does not support the broad and powerful proposition offered in PMF 15. Michaels was referring to Staikos’ instructions not to deliver items into Jackson’s bedroom, but to leave them in the kitchen, even if Jackson asked otherwise. (See Cunny Decl., Ex. 3 163:24-164:10 (Vol. 2).) Moreover, Defendants’ objection that the answer misstated the witness’ testimony was preserved at the deposition and is well taken. (Id., Ex. 3 164: 11-12.) As such, Michaels’ testimony does not support the contention that Defendants’ employees could control Jackson’s personal or professional life other than the placement of packages arriving at the residence. Moreover, while Ms. Staikos or Mr. Bray had the authority to hire and fire employees of the Defendants, there is no evidence that they held power over Jackson or his personal actions.

The lack of control is further illustrated by the location where the abuse is alleged to have occurred – Neverland Valley Ranch and a condominium nicknamed “The Hideout,” which were owned solely by Jackson and not by the corporate Defendants. (See FAC ¶¶ 22 and 25; UMF 10.) Defendants submit evidence that they had no authority to govern Jackson’s ingress and egress from these locations, control who visited him at these locations, or govern procedures regarding visitors to these locations. (UMF 12; Branca Decl., ¶ 24.) While Plaintiff disputes this fact, Plaintiff does not submit any evidence in support of that position, other than Defendants’ corporate structure and board of directors, which is irrelevant to this issue. (Plaintiff’s Resp. to UMF 12; PMF 4-10.) Plaintiff does not submit any evidence that Defendants could control Jackson’s behavior at these two locations.

Since Plaintiff cannot create a material issue of disputed fact as to the existence of a special relationship between Defendants and Plaintiff, Plaintiff would be required to show misfeasance on the part of Defendants. In his opposition, Plaintiff conflates misfeasance and nonfeasance. As stated, liability or duty “may not be premised on a defendant’s nonfeasance if the defendant did not create the peril.” (Todd, 19 Cal. App. 4th at 260.) Plaintiff’s reliance on Lugtu v. Cal. Highway Patrol, (2001) 26 Cal. 4th 703 is misplaced since that matter involved misfeasance, or the creation of the peril, specifically, the officer’s directing of the driver to stop in a center median of the freeway where they were later struck by a truck. (Id. at 716-17.) The facts submitted by Plaintiff do not support the conclusion that Defendants created the peril (i.e. Jackson), but at most, after Plaintiff and Jackson had connected (UF 14-17 and 19-21), and after Plaintiff was first molested by Jackson (UF 22-23), Defendants provided transportation, security and similar services. (PMF 25-28 and 51-56.)

There is no evidence supporting Plaintiff’s contention that Defendants exercised control over Jackson. The evidence further demonstrates that Defendants had no legal ability to control Jackson, because Jackson had complete and total ownership of the corporate defendants. Without control, there is no special relationship or duty that exists between Defendants and Plaintiff. In addition, there is no evidence of misfeasance by Defendants. Thus, Plaintiff’s negligence claims fail and Defendants are entitled to summary adjudication on the second through fifth causes of action.

First Cause of Action: Intentional Infliction of Emotional Distress

Defendants argue that they are entitled to summary adjudication on the first cause of action for intentional infliction of emotional distress (“IIED”) because Plaintiff cannot demonstrate “extreme and outrageous conduct” by Defendants. In support of this position, Defendants point to paragraphs 88 and 89 in the fourth amended complaint and argue that there is nothing outrageous about a sole shareholder, in this case Jackson, holding a position of authority that permits that person to conduct his own business affairs. Defendants also point to evidence that contradicts Plaintiff’s allegations in paragraph 88. Defendants argue that they did not put Jackson in positions of authority and that the evidence shows that Jackson created and had ultimate control over the corporations as a result of being the sole shareholder. (UF 7, 9, 45, 49, 50, 54.) Defendants further argue that corporations are not “persons” under Code of Civil Procedure section 340.1(a)(1) and cannot be held liable for intentional infliction of emotional distress under that code section, citing Boy Scouts of America National Foundation v. Superior Court (2012) 206 Cal.App.4th 428, 445. Defendants also contend that the evidence does not show that Plaintiff was procured by the corporations. (UF 13-23.). Defendants also argue that they cannot be held vicariously liable for their employee’s torts.

In opposition, Plaintiff argues that Defendants are liable because they facilitated the abuse and procured children for Jackson. (Opp. 19-20; PMF 24-32 and 39-82.) Plaintiff does not argue, or put forth evidence, in support of his complaint’s allegations set forth in paragraphs 88-89 regarding Defendants placing Jackson in a position of authority or failing to supervise Jackson. Plaintiff also argues that an institution can be held liable, relying upon Hightower v. Roman Catholic Bishop of Sacramento (2006) 142 Cal.App.4th 759. In reply, Defendants argue that they cannot be held directly liable under Code of Civil Procedure section 340.1(a)(1) and that such claims fail as matter of law under Boy Scouts of America.

In Boy Scouts of America, the Court of Appeal in the context of the statute of limitations rejected liability for IIED for a corporation under section 340.1(a)(1). (Boy Scouts of America, 206 Cal.App.4th at 444-45.) The Court explained, “Even assuming that plaintiffs' action was brought against the Boy Scouts in the capacity of perpetrators (whether as aiders and abettors or as child procurers under Penal Code section 266j), the Boy Scouts remain, as alleged in the complaint, corporate entities to which subdivision (a)(1) of section 340.1 does not apply.” (Id. at 445; see also Pen. Code, § 266j [“Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288, or who causes, induces, or persuades a child under the age of 16 to engage in such an act with another person, is guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years, and by a fine not to exceed fifteen thousand dollars ($15,000).”]) The Court reasoned that 340.1(a)(1) did not apply to the Boy Scouts because the legislature omitted entities from that subdivision -- “[a] ‘person’ for purposes of subdivision (a)(1) may not be defined to include an entity defendant. [Such] interpretation is confirmed by the legislative history of section 340.1, subdivisions (a)(1)–(3) and (b)(1).” (Id. at 447.) While Plaintiff relies upon Hightower, 142 Cal.App.4th 759, that matter involved section 340.1’s limitations period, and the delayed discovery rule and not the entity exclusion of section 340.1. Hightower, 142 Cal.App.4th at 768.

Since Plaintiff admits that he is attempting to hold Defendants directly liable under a theory of procurement, i.e. direct liability for sexual abuse, and since such claims are not available against entities, Defendants are entitled to summary adjudication on this claim.

Sixth Cause of Action: Breach of Fiduciary Duty

Defendants argue that they are entitled to summary adjudication on the sixth cause of action because there is no triable issue of material fact as to whether a fiduciary relationship between Plaintiff and Defendants existed or whether those fiduciary duties were breached.

“Whether a fiduciary duty exists is generally a question of law. [Citation.]” (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599, 71 Cal.Rptr.3d 361.) A fiduciary relationship is created when a party either (1) knowingly undertakes to act on behalf and for the benefit of another, or (2) enters into a relationship which imposes that undertaking as a matter of law. (City of Hope Nat. Med. Ctr. v. Genentech, Inc., (2008) 43 Cal.4th 375, 386 (2008).) “In general, employment-type relationships are not fiduciary relationships. (Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1391.) In the absence of a fiduciary relationship, there can be no breach of fiduciary duty as a matter of law. (O'Byrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797, 811–812.)

Defendants argue that there is no evidence that Defendants either undertook an act or entered into a relationship that would impose such a duty. Defendants argue that the evidence demonstrates that there were two potential relationships that Plaintiff had with Defendants. Robson appeared in three music videos for Jackson, and Robson was part of a rap group that released an album on a label created by MJJ Ventures. (UF 60 – 61.) Defendants argue that this sort of relationship, performer – studio/record company are not fiduciary in nature citing Wolf v. Superior Court (2003) 107 Cal.App.4th 25. Defendants also argue that there is no evidence that Plaintiff was placed under the care and supervision of either corporation. Defendants contend that it is undisputed that the corporations were not child care businesses. (UF 63-64.).

In opposition, Plaintiff argues that as a minor employee, he entered into a confidential and trusting relationship with Jackson. Plaintiff also argues that Defendants had physical custody of Plaintiff through Jackson. Plaintiff contends Defendants were child care businesses. In reply, Defendants argue that there is no evidence that Plaintiff was in a confidential relationship with Defendants individually apart from Jackson. Defendants argue that the evidence shows that the relationship with Jackson arose independent of the corporations, and prior to Plaintiff’s employment. (UF 13-23, 31, 33, 34.)

Once again, the issue for the Court is whether there are any disputed facts that could potentially give rise to the creation of a fiduciary duty. Here, there is no evidence that Plaintiff was in a trusting relationship with the individual corporate Defendants, even if there is evidence of such a relationship with Jackson. (See PMF 48-56 (concerning Jackson only).) Plaintiff further argues that Defendants and Jackson had physical custody of Plaintiff, who was a minor. Plaintiff, however, has not alleged any facts demonstrating that Defendants had a duty to control the conduct of Plaintiff as a parent would or that Defendants had physical custody of Plaintiff. (See Poncher v. Brackett (1966) 246 Cal.App.2d 769, 773–774 (raw allegations that parents stood in relation of loco parentis insufficient as a matter of law.) Since the undisputed evidence shows that Plaintiff did not enter into a relationship with Defendants that would impose a fiduciary duty, Defendants are entitled to summary adjudication on this cause of action.

[1] The Court notes that Plaintiff included full deposition transcripts. California Rules of Court, Rule 3.1116(b) provides, “Other than the title page, the exhibit must contain only the relevant pages of the transcript. The original page number of any deposition page must be clearly visible.” (CRC Rule 3.1116(b).) Plaintiff does not cite entire depositions. Plaintiff should have only included the portions that were cited in the opposition, and should have highlighted the relevant portions in “a manner that calls attention to the testimony.”

Case Number: BC508502    Hearing Date: December 04, 2020    Dept: M

CASE NAME: Wade Robson v. Doe 1, et al.

CASE NO.: BC508502

MOTION: Motions for Reconsideration

HEARING DATE: 12/4/2020

Background

Plaintiff Wade Robson seeks reconsideration of the orders granting protective orders in favor of non-parties Marion Fox, Jonathan Spence, Lily Chandler and Tabitha Rose Marks.

Legal Standard

A court may reconsider a prior ruling if the party affected provides notice within 10 days of the order it seeks reconsideration of “new or different facts, circumstances, or law.” (Code Civ. Proc. §1008(a).)

“[F]acts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different.’” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 [citing Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690].) “The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008(a).)

REQUEST FOR JUDICIAL NOTICE

Plaintiff filed three requests for judicial notice. Plaintiff seeks judicial notice of Exhibit 6 to the Pendry declarations and Exhibit 8 to the declaration of Taylor Boren. Exhibits 6 and 8 contain a copy of the prior version of Code of Civil Procedure section 340.1. The Court takes judicial notice of the prior version of section 340.1.

EVIDENTIARY OBJECTIONS

Non-party Marion Fox’s objections to the declaration of Courtney Pendry, Objections 1 – 9 are SUSTAINED.

Non-party Johnathan Spence’s objections to the declaration of Courtney Pendry, Objections 1 – 4 are SUSTAINED.

Analysis

The declarations provided by counsel fail to meet the requirements of Code of Civil Procedure section 1008(a), which requires a party moving for reconsideration to state by affidavit “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” Here, Plaintiff does not state this information by affidavit, but attempts to rely upon exhibits to the affidavits, including transcripts and other documents that contain the necessary information. That is insufficient under section 1008(a), and as a result, Plaintiff has failed to meet the jurisdictional requirement for the Court to consider these motions and reconsider its prior rulings. (See Civ. Proc. § 1008(e).)

Moreover, even if Plaintiff’s declarations complied with section 1008, Plaintiff has not presented new or different facts, circumstances, or law that were not already known to Plaintiff prior to the September 24, 2020 hearing. Therefore, the motions for reconsideration are DENIED.

Case Number: BC508502    Hearing Date: October 16, 2020    Dept: M

Robson v. MJJ Productions et al., BC508502

Tentative Ruling Re Sanctions

On September 24, 2020, the Court issued its final ruling on Plaintiff’s motion for a protective order regarding the conduct of defense counsel during the deposition of third party Leroy Whaley, and request for sanctions. As set forth in that ruling, the Court denied Plaintiff’s motion. The Court further concluded that Plaintiff’s counsel had not met and conferred in good faith prior to filing the motion, and that sanctions were appropriate against counsel pursuant to California Code of Civil Procedure sections 2023.020 and 2025.420(h). The Court set a hearing on the amount of sanctions for October 16, 2020, and the parties stipulated to a briefing schedule on the issue.

On October 9, 2020, Plaintiff filed a declaration in opposition to defendant’s declaration regarding the amount of sanctions to be awarded. The Court first addresses the issues raised by Mr. Finaldi in his declaration.

1. Due Process

In his declaration, Mr. Finaldi argues that the Court’s imposition of sanctions would violate due process because he was not provided notice or a reasonable opportunity to be heard before the Court ruled that sanctions would be issued. Plaintiff brought his motion for a protective order pursuant to Code of Civil Procedure section 2025.420. The statute itself provides notice to any party bringing such a motion that the Court shall impose sanctions pursuant to section 2025.420(h) 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.” (Code Civ. Proc., § 2025.420(h).) The notice contained within the discovery statute of mandatory sanctions is sufficient to satisfy due process concerns.

In addition, Plaintiff complains he was not given a reasonable opportunity to be heard prior to the imposition of sanctions. The Court has not actually imposed sanctions at this time, and gave the parties time to brief the issue of sanctions. While Mr. Finaldi’s declaration argues that he was only permitted to address the reasonableness of the amount of sanctions, the contents of his declaration contradicts this assertion and no such restriction is contained in the Court’s minute order. In fact, Mr. Finaldi’s ten page declaration only addresses the legal merits of the Court’s imposition of sanctions on its own motion and fails to address the reasonableness of the sanctions requested by defense counsel. Counsel also will have the opportunity to argue these issues at the October 16, 2020 hearing. Therefore, the Court concludes that Plaintiff’s counsel had a reasonable opportunity to be heard on the issue of monetary sanctions prior to the Court actually imposing monetary sanctions.

Moreover, the case law relied upon by Plaintiff’s counsel does not support his contention that the Court is powerless to impose sanctions when a statute makes the imposition of those sanctions mandatory. For instance, Alliance Bank v. Murray (1984) 161 Cal. App. 3d 1, dealt with the prescribed procedure of a prior discovery statute that granted the court discretion to impose sanctions upon motion and notice, in that case for willfully failing to appear at a deposition. (Id. at 7.) The court concluded that appellant waived the 15 day notice period by participating in the sanctions hearing. (Id. at 9.) As to O’Brien v. Cseh, (1983) 148 Cal. App. 3d 957, the monetary sanctions were not imposed mandatorily as with section 2025.420, but were pursuant to Code of Civil Procedure section 128.5. In that matter, the application for sanctions was brought in an ex parte filing, which was not permitted by section 128.5 (Id. at 961.)

Finally, in In re Marriage of Fuller, (1985) 163 Cal. App. 3d 1070, the appellate court found that appellant, an attorney, had no notice from the court that sanctions would be imposed against him individually for his client’s failure to comply with a court order and then fail to appear at a hearing. While the appellate court was unsure what statute was relied upon by the trial court in imposing sanctions, the potential statutes all required notice. (Id. at 1076-77.) Based upon the facts of that case, the Fuller court concluded that counsel was never placed on notice of possible sanctions, and had no reason to suspect sanctions would be awarded against him individually. (Id. at 1077.)

The Court concludes that it is appropriate in this matter for sanctions to be awarded against Plaintiff’s counsel based on the plain language of the statute and the failure to properly meet and confer prior to filing this motion. As set forth in the September 24, 2020 order, the Court finds that counsel did not act with substantial justification in terminating the deposition and bringing this motion, and there are no other circumstances making the imposition of the sanction unjust. As the California Supreme Court has noted:

[B]efore parties may seek assistance from the court to resolve disputes or extend discovery, they must meet and confer. Moreover, the trial court “shall” impose monetary sanctions against a party that unsuccessfully makes or opposes a motion involving discovery “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.” (Code Civ. Proc., § 2024, subd. (e) [repealed].) As Justice Epstein explains: “The result is supposed to be that sanctions will be awarded in far more cases than before. And that, in turn, is supposed to encourage parties and their counsel to cooperate with discovery and avoid unnecessary court proceedings.” (Epstein, The Civil Discovery Act of 1986, supra, 10 L.A. Lawyer, at p. 21.)”

(Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 254 fn. 3.)

Whenever one party's improper actions—even if not ‘willful’—in seeking or resisting discovery necessitate the court's intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party.” (Ellis v. Toshiba America Information Systems, Inc. (Aug. 14, 2013), as modified on denial of reh'g (Sept. 10, 2013) [internal quotations omitted] [quoting another source].) In Zellerino v. Brown (1991) 235 Cal.App.3d 1097, the Court of Appeal recognized that “[t]he deterrence provided by the threat of sanctions for an unjustified motion for a protective order promotes broad discovery and minimizes court intervention.” (Zellerino 235 Cal.App.3d at 1110.)[1] In analyzing similar language in another portion of the discovery statute related to physical examination demands, the Court of Appeal explained, “[u]nder this legislative scheme, a monetary sanction must be imposed against any party or attorney who unsuccessfully opposes a motion to compel compliance with a demand for a physical examination unless the court finds the party or attorney acted with “substantial justification” or a sanction would be unjust for some other reason.” (Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 260 [emphasis added].). Ghanooni addresses the “unless” clause in the sanctions provision – that courts are required to impose sanctions unless the party was justified or it would be unjust, and such language is also used in Code of Civil Procedure section 2025.420(h). (See Id.; see also Code Civ. Proc., § 2025.420(h).)

In addition, a “motion for a protective order puts the burden on the objector to establish why a particular request need not be complied with, and ‘should not be made unless the party making, and the party opposing, the protection sought have made a reasonable and good faith attempt to resolve the issues involved in an informal manner. The motion must be accompanied by a declaration detailing the steps that have been taken by counsel in an effort to resolve these issues before troubling the court to do so.’ (1 Hogan, § 10.16, p. 650, emphasis added.)” (Zellerino 235 Cal. App. 3d at 1111. .) The meet and confer requirements are included in the various discovery statutes to ensure that the parties do not unnecessarily waste the time of the Court or of the parties.

The key difference between the cases relied upon by Plaintiff and this matter is that here the statute itself gave notice that a party who brings a failed motion for a protective order shall have monetary sanctions imposed. Indeed, counsel sought monetary sanctions against Defendants and counsel under this same statute. Plaintiff’s counsel was given notice on September 24, 2020 that the Court intended to impose sanctions against him, and he was afforded an opportunity to respond in writing, and subsequently argue the matter. Furthermore, the Court did not limit Mr. Finaldi to a declaration in response, but set a briefing schedule for the hearing. Mr. Finaldi has filed a ten page brief in opposition to the imposition of sanctions, and after argument, will have had a full opportunity to be heard regarding the merits of sanctions.

As a separate basis for sanctions, the Court found that Plaintiff’s counsel failed to meet and confer adequately before filing his motion for a protective order. The meet and confer efforts were facially insufficient. Mr. Cunny’s March 2, 2017, email identifies itself as a good faith effort to meet and confer, but simply consists of four non-negotiable demands, and one day to respond. (Exh. C to Finaldi Decl. ISO Leroy Whaley Protective Order.) The imposition of non-negotiable demands is by its definition not a good faith meet and confer effort. Subsequent and reasonable efforts to reach a compromise were summarily rejected on March 8, 2020 by Mr. Finaldi. (Exhibit E to Finaldi Decl. ISO Leroy Whaley Protective Order [“It is an absolutely preposterous proposal . . .. We will be filing the motion, seeking sanctions against your client and co-counsel.”]) Finally, at the deposition, Mr. Finaldi rejected Ms. MacIsaac’s efforts to salvage the deposition by meeting and conferring.

2. Conflation of Issues between Sanctions and Attorney Misconduct

Mr. Finaldi further argues that sanctions should not be imposed for his “refusing to continue to endure such abusive and wildly inappropriate conduct.” (Finaldi Decl., p. 8.) Counsel requests that he should have been allowed to provide additional briefing on the issue of incivility so the Court could “make a determination with the full, complete record before it.” (Id. at p. 9.) Counsel conflates the issues of sanctions, which were imposed for failing to meet and confer in good faith and bringing an unsuccessful motion for protective order, with his incivility to opposing counsel at this and another deposition. The issues are separate and distinct. As to Mr. Finaldi’s behavior, the record certainly supported the Court’s statement in its September 24, 2020 minute order that:

Plaintiff’s counsel’s statements made at other depositions regarding Ms. MacIsaac, including statements regarding her alleged lack of legal experience or ability as an attorney, belittling of her appearance (“red in the face”), making allegations regarding her emotional state and excessive breathing, and general dismissiveness will not be tolerated by the Court and could appear to indicate gender incivility.

Along with the rules of professional conduct, the Court has expectations for the professional and civil conduct of the attorneys that appear before it, and when such as here, an attorney falls short of that expectation, it is incumbent on the Court to address that behavior. The Court makes no apology for doing so. Counsel should focus more on ensuring that incivility does not continue, and not whether an evidentiary hearing is necessary for the Court to reach this conclusion, which was amply supported by the record before the Court in multiple depositions. As the Court had limited exposure to counsel and their history, the Court did not make any findings of misconduct, but appropriately put the parties on notice that the type of behavior observed by the Court would not be tolerated going forward.

3. Award of Sanctions

As stated, Plaintiff does not contest the amount of sanctions requested by Defendants. Defendants sought a total of $14,281.25. (See Steinsapir Decl., ¶ 13.) The Court has reviewed the request, including the hours spent and hourly rate of the attorneys, and concludes that the request is reasonable and limited to time spent opposing Plaintiff’s motion for a protective order. The Court, however, believes that it would be just and reasonable to limit sanctions to time spent directly opposing the motion, which is $9,200. (Steinsapir Decl., ¶ 12(c).)

The Court awards Defendants $9,200 in monetary sanctions against Plaintiff’s counsel, payable within 30 days.


[1] The Court recognizes that the Zellerino case is not directly related to a protective order, as the question before the Court was about relief under Code of Civil Procedure section 473 related to expert witnesses and “whether the trial court abused its discretion in granting relief under section 473 by issuing an order compelling discovery and in granting an in limine motion when the plaintiff failed to comply with that order.” (Id. at 1100.)

Case Number: BC508502    Hearing Date: September 24, 2020    Dept: M

CASE NAME: Wade Robson v. Doe 1, et al.

CASE NO.: BC508502

MOTION:  1.  Motions for Protective Orders re Non-Parties Jonathan Spence, Marion Fox, Lily Chandler, and Tabitha Rose Marks

MOTIONS FOR PROTECTIVE ORDERS

Plaintiff subpoenaed Jonathan Spence, Marion Fox, Lily Chandler, and Tabitha Rose Marks seeking to depose these parties. Non-parties Jonathan Spence and Marion Fox filed separate motions for protective orders on August 31, 2017, and October 20, 2017, respectively. Non-parties Lily Chandler and Tabitha Rose Marks filed their joint motion for a protective order on June 12, 2017.

Fox seeks a protective order under Code of Civil Procedure sections 2017.020, 2019.030, 2023.010, and 2025.420 requesting that the deposition of Marion Fox: (1) be taken at a different time after the December 5, 2017 hearing on Defendants’ pending motion for summary judgment (Code of Civil Procedure Section 2025.420(b)(1)); (2) that matters protected by Fox’s right to privacy not be inquired into (Code of Civil Procedure Section 2025.420(b)(9)); and (3) all of the writings or tangible things designated in the deposition notice not be produced (Code of Civil Procedure Section2025.420(b)(11)).

Spence seeks a protective order under Code of Civil Procedure sections 2017.020, 2019.030, 2023.010, and 2025.420 requesting that Spence’s deposition: (1) be taken at a different time, after the December 5, 2017 hearing on Defendants’ pending motion for summary judgment (Code of Civil Procedure Sections 2025.420(b)(l)); (2) be taken at the offices of Spence’s counsel in Los Angeles (Code of Civil Procedure Sections 2025.420(b)(4)); and (3) matters protected by Spence’s right to privacy not be inquired into (Code of Civil Procedure Sections 2025.420(b)(9)).

Lily Chandler and Tabitha Rose Marks seek a protective order pursuant to Code of Civil Procedure section 2025.420, on the grounds that justice requires the issuance of such an order for the following reasons: (1) to protect Lily and Tabitha from unwarranted annoyance, embarrassment, or oppression; (2) to allay legitimate fears for their personal safety based upon documented current and historical events; and (3) to prevent the unwarranted invasion of their constitutional privacy rights. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844.) Chandler and Marks request a protective order that the depositions not go forward at all.

LEGAL STANDARD

General protective order

“The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2017.020(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.” (Code Civ. Proc., § 2017.020(b).)

Protective order for depositions

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization “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(b).)

Finally, “[t]he 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.” (Code Civ. Proc., § 2025.420(h).)

EVIDENTIARY OBJECTIONS

Spence’s objections to September 15, 2017, Finaldi Declaration

Objections nos. 1-8 – SUSTAINED.

Fox’s objections to November 29, 2017, Reilley Declaration.

Objections nos. 1-8 – SUSTAINED.

ANALYSIS

  1. Meet and confer

Counsel for Chandler and Rose Marks filed a declaration in support of the motion for a protective order. Counsel asked Plaintiff to withdraw the subpoenas as they violated non-parties Chandler and Rose Marks’ constitutional right to privacy. On October 18, 2016, Plaintiff informed counsel that he would not withdraw the subpoenas, but did not agree to meet and confer as to privacy issues.

Counsel for Fox met and conferred with Plaintiff outside of the Department M courtroom. (Hardy Decl. ¶ 5.) Plaintiff refused to limit the scope of the deposition and refused to reschedule the deposition until after the hearing on the motion for summary judgment, and thus failed to reach an agreement on the subpoena.

Counsel for Spence attempted to meet and confer with Plaintiff prior to filing this motion. Counsel for Plaintiff refused to engage in telephonic meet and confer efforts.

  1. Whether moving parties have shown that there is good cause to issue a protective order to prevent unwarranted annoyance, embarrassment, or oppression, or undue burden and expense

In general, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) “[T]he party opposing discovery has an obligation to supply the basis for this determination.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549; Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318 [“Where a party must resort to the courts, “the burden is on the party seeking the protective order to show good cause for whatever order is sought. [Citation.]””]. “Code of Civil Procedure section 2025.420, subdivision (b), provides a nonexclusive (Nativi v. Deutsche Bank National Trust Co. “‘The concept of good cause . . . calls for a factual exposition of a reasonable ground for the sought order.’ [Citations omitted.]” (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.)

Fox and Spence

Non-parties Fox and Spence both argue that there is good cause to grant the requested protective orders because Plaintiff seeks information that is protected by their constitutional right to privacy. The California Constitution expressly provides that all people have the inalienable right to privacy. (Cal. Const., art. I, § 1; see also American Academy of Pediatriacs v. Lungreen, (19970 16 Cal. 4t§h 307, 325-26 (the California Constitution expressly recognizes a right to privacy and is considered broader than the implied federal right to privacy.) When a person objects on the grounds of privacy, he or she must demonstrate disclosure of the requested information would invade a legally protected privacy interest. (See Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1423.) If the discovery invades a cognizable privacy interest, the proponent of the discovery must demonstrate the information sought is directly relevant to a claim or defense so that the court can evaluate the extent that the requested information would further legitimate and important competing interests. (Id. at 1426-1427, 1433.) If the information sought is directly relevant, the court must balance the right to privacy against the countervailing right to discover relevant information to litigate the case in determining whether to permit discovery. (Id. at 1426-27.) , psychotherapeutic, and sexual histories are within a person’s constitutionally protected zone of privacy. (Bearman v. Superior Court (2004) 117 Cal.App.4th 463, 473 [medical history]; Scull v. Superior Court (1988) 206 Cal.App.3d 784, 788-789 [information as to psychotherapy protected under the California Constitution]; Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 380 [while not absolute, the constitutional right to privacy extends to all matters relating to marriage, family, and sex].) Nonlitigants are afforded more protection than litigants from discovery of private information. (Britt v. Superior Court (1978) 20 Cal.3d 844, 858-859.)

Here, Wade Robson’s deposition subpoena is silent as to the information it seeks from Jonathan Spence. The deposition subpoena for Marion Fox contains two document requests: (1) “Any and all photographs in your possession, custody or control of your son, Jonathan Spence, taken while he was 3 through 18 years age;” and (2) “Any and all photographs in your possession, custody or control depicting Michael Jackson.” (See Ex. 1 to Hardman Decl. ISO Marion Fox’s motion for protective order.) In the oppositions to the Spence and Fox motions, Plaintiff Robson states that he seeks information related to whether Spence knew or interacted with Michael Jackson during childhood and onward, including alleged sexual interactions. This information is constitutionally protected. The burden therefore shifts to Plaintiff to demonstrate that the information sought is directly relevant to a claim or defense and essential to the fair resolution of their lawsuit. (See Alch, 165 Cal.App.4th at 1426-1427, 1433; Brit, 20 Cal.3d at 859.)

The Court sustained all objections to the Finaldi and Reilley declarations based upon hearsay, lack of foundation, lack of personal knowledge and speculation. As such, Plaintiff fails to present admissible evidence demonstrating that he seeks information from these witnesses that is directly relevant to his own claims. Therefore, Plaintiff fails to meet his burden as to information sought from Spence and Fox. Even if this evidence was admissible, however, the Court would still conclude that Plaintiff has failed to demonstrate that he seeks information directly relevant to his own claims of sexual abuse. Plaintiff’s do not contend that these witnesses are percipient witnesses or have direct knowledge of his sexual abuse, but are seeking evidence that would corroborate his own allegations. This is an insufficient basis to compel third parties to discuss such highly sensitive and protected private information. The Court is hard pressed to identify information that is more sensitive or private than childhood sexual abuse. Even if the evidence submitted by Plaintiff was admissible, the Court would still grant Spence and Fox’s motions for a protective order because the stated desire for corroboration of Plaintiff’s own sexual abuse is not directly relevant to his claims or essential to the resolution of his case.[1]

As to the request that the deposition be taken after the summary judgment hearing, that request is moot since the motion was heard in December of 2017 and since the Court of Appeal reversed the ruling on statute of limitations grounds.

Here, non-parties Spence and Fox have shown good cause to prevent their depositions from covering topics that infringe upon their rights to privacy. Since Plaintiff has failed to show that the information sought is directly relevant, and since Fox and Spence demonstrated that Plaintiff seeks to discover information that is constitutionally protected, the motions for a protective order as to Spence and Fox are GRANTED. Fox is not required to produce the documents request in the subpoena since those requests are overly broad and irrelevant. Plaintiff may not inquire into any matters that are protected by Fox or Spence’s constitutional rights to privacy, including but not limited to their medical, psychotherapeutic, and sexual histories.

In addition, the Court denied the motion for contempt as to Marion Fox on November 16, 2017. The Court stated, “It is clear to the Court that she was unable to appear and Plaintiff was advised.” (See 11/16/2017 Minute Order.) The Court continued the motion to the extent that the deposition needed to be compelled. Given the global pandemic, to the extent that the depositions go forward, the deposition should be conducted remotely as permitted by Emergency Rule 11, i.e. that the deponent is not required to be in the same room as the deposition officer, or depositions should be conducted with social distancing, or if agreeable to the parties, they can occur at the moving parties’ counsel’s offices. The OSCs re contempt are MOOT/DENIED as to Spence and Fox.

Sanctions re Fox and Spence motions

Fox and Spence separately seek sanctions against Plaintiff and/or counsel in the amount of $5,135.00 pursuant to Code of Civil Procedure section 2025.420(h) for opposing the motion without substantial justification. In opposition, Plaintiff argues that Plaintiff is entitled to sanctions under Code of Civil Procedure section 2020.240 for misuse of the discovery process and seeks sanctions in the amount of $5,536.50 against Spence, Freedman + Taitelman, LLP and Sean M. Hardy, Esq. (See opp. to Spence Mot. at 14-15.) Section 2024.420(h) provides that “[t]he 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.” (Code Civ. Proc., § 2025.420(h) [emphasis added].) Plaintiff has not demonstrated that he acted with substantial justification in opposing the Fox and Spence motions and certainly did not participate in any meaningful meet and confer attempts initiated by the non-parties, especially Spence. Therefore, Fox’s motion for sanctions is GRANTED and Spence’s motion for sanctions is GRANTED. Plaintiff is ordered to pay sanctions in the reduced amount of $3,135.00 to Fox and $3,135.00 to Spence within 60 days of this order.

Lily Chandler and Tabitha Rose

Non-Party deponents Lily Chandler and Tabitha Rose Marks (“Chandler and “Rose Marks”) seek a protective order precluding their depositions. Chandler and Rose Marks argue that Plaintiff served them individually with subpoenas and seeks to depose them concerning the whereabouts of Jordan Chandler, Jordan’s interactions with Michael Jackson in the early 1990’s, and with respect to Chandler and her families’ interactions with Jackson. Neither moving party nor opposing party present the subpoenas at issue. Instead, both cite the cover letters that were attached to the deposition subpoenas. (See Ex. H & I to April 17, 2017 Finaldi Decl. [cover letters dated September 8, 2016].) In the cover letter, Plaintiff’s counsel expressed that Plaintiff is open to a protective order over the deposition transcript. (Ibid.)

Chandler and Rose Marks argue that their depositions should not be allowed to go forward because Plaintiff seeks information that is protected by their rights to privacy. They argue that Plaintiff cannot meet his burden in showing that the information that Plaintiff seeks is directly relevant and essential to determining the truth of the matters. Chandler and Rose Marks argue that Rose Marks is not a percipient witness to the facts of this case, and that both Rose Marks’ and Chandler’s constitutional right to privacy is implicated because Plaintiff seeks to obtain information about the alleged sexual relationship between Jordan Chandler and Michael Jackson. Both also argue that they fear for their safety.

In her motion, Rose Marks declares under penalty of perjury that she does not have any knowledge as to what happened between Jordan Chandler and Michael Jackson. (Rose Marks Decl. ¶ 6.) Rose Marks also declares that she does not have any information as to Jordan Chandler’s whereabouts. (Id. ¶ 10.) Rose Marks admits that she was engaged to Jordan Chandler but, around February 2016, they decided to end the engagement. (Id. ¶ 7.) This declaration was executed in October 2016, and nearly four years have passed since Rose Marks and Jordan Chandler were engaged. To the extent that Plaintiff seeks to depose Rose Marks as to the location of Jordan Chandler, Plaintiff cannot possess a reasonable belief that Rose Marks has information relevant to this inquiry. Furthermore, there is no dispute that Rose Marks has no direct knowledge of any conduct involving Michael Jackson and either Jordan Chandler or Plaintiff. To the extent that Rose Marks possesses information, that information would necessarily have come from her former fiancée, which would be protected by their right to privacy as to sexual conduct and their own intimate relationship.

Lily Chandler also presents a declaration in support of her motion. Chandler declares that she is the half-sister of Jordan Chandler. (Chandler Decl. ¶ 3.) She also states that she has no specific memories of any interaction with Michael Jackson even though she has seen picture of herself, Jordan Chandler, and their mother with Michael Jackson. (Id. ¶ 5-6.) Chandler has no memory of any individuals that might have been employed by Michael Jackson when she was a child. (Id. ¶ 8.) Both Chandler and Rose Marks have, or had, a connection to Jordan Chandler, either familial in the case of Chandler, or romantically in the case of Rose Marks. Chandler’s relationship to Jordan Chandler implicates the familial right to privacy.

Here, both Chandler and Rose Marks have met their burden in demonstrating that Plaintiff seeks information that is constitutionally protected. Therefore, the burden shifts to Plaintiff to demonstrate that the information sought is directly relevant to a claim or defense. In opposition, Plaintiff argues that the depositions of Chandler and Rose Marks are necessary to find and obtain information on Jordan Chandler, a child that reported and filed a civil suit against Michael Jackson in the 1990s. Plaintiff argues that he needs to depose Jordan Chandler because his credibility bears on Plaintiff’s credibility. Plaintiff also argues that Jordan Chandler is necessary for determining the issue of whether Defendants MJJ Productions or Ventures were, or should have been, on notice of any ongoing sexual abuse.

The ultimate goal appears to be for Plaintiff to find and depose Jordan Chandler for the purpose of using evidence of Jordan Chandler’s sexual abuse to assist in proving his own case of sexual abuse. To the extent Plaintiff seeks to admit character evidence, it would be inadmissible under Evidence Code section 1102(a). With respect to the corporate defendant’s liability, the October 7, 2016, Fourth Amended Complaint (“4AC”) alleges intentional infliction of emotional distress, negligence in various forms, and breach of fiduciary duty against MJJ Productions, Inc., MJJ Ventures, Inc., and Doe Defendants. (See 4AC.) The 4AC alleges that numerous agents and employees of these defendant companies actively participated in, and witnessed, Jackson’s child sexual abuse conduct. As such, the Court does not conclude that even the ultimate goal – the deposition of another alleged victim, Jordan Chandler – would be essential to his claims.

Finally, the Court is in complete agreement with Plaintiff’s claim that there is an overriding public interest in preventing child sexual abuse. Plaintiff, however, fails to connect this overriding public interest with the depositions at issue.

The Court has balanced the privacy rights of Chandler and Rose that implicate their familial relationships as well as Jordan Chandler’s alleged childhood sexual abuse history along with the inherent intrusiveness of these lines of inquiries, against the interests of Plaintiff in obtaining this information from nonparties who have no direct knowledge of any sexual abuse, including alleged abuse of Plaintiff and Jordan Chandler. As a result, the Court determines that Plaintiff has failed to demonstrate the compelling need for their depositions. The motion for a protective order is GRANTED. Plaintiff cannot depose Lily Chandler and Tabitha Rose Marks in this matter.

Motion for Protective Order re Conduct of Counsel and Sanctions

In March 2017, Plaintiff filed a motion for a protective order regarding the conduct of defense counsel during the deposition of third party Leroy Whaley. Plaintiff seeks $8,194.38 in monetary sanctions against Suann MacIsaac and Kinsella, Weitzman, Iser, Kump & Aldisert LLP.

LEGAL STANDARD

Protective order for depositions

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization

“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(b).)

Finally, “[t]he 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.” (Code Civ. Proc., § 2025.420(h).)

ANALYSIS

  1. Meet and confer

The Court finds that Plaintiff did not meet and confer in good faith with defendants as to the resolution of the issues presented by this motion. (See Ex. C to Motion.) In their motion, Plaintiff relies on the meet and confer letter of Alex Cunny, an attorney who did not take the deposition and had no personal knowledge of the events at the deposition. As such, the Court finds the letter inadequate. In addition, the letter is not a good faith meet and confer letter but an ultimatum that requires counsel to simply agree to the terms of the letter, or the motion for a protective order will be filed. Counsel was given approximately 25 hours to respond to Plaintiff’s unilateral demand, assuming that they reviewed their email immediately upon it being sent by Plaintiff. Finally, counsel rejected efforts at the deposition to meet and confer regarding these issues, which is further evidence that counsel has failed to meet and confer in good faith. Failure to meet and confer in good faith is an abuse of the discovery process, and as such, an independent basis for the court to impose monetary sanctions. (Code Civ. Proc. § 2023.020; Moore v. Mercer (2016) 4 Cal. App. 5th 424, 448.)

  1. Whether moving parties have shown that there is good cause to issue a protective order to prevent unwarranted annoyance, embarrassment, or oppression, or undue burden and expense

The motion for a protective order is DENIED. Plaintiff has failed to meet his burden in showing that he is entitled to the relief requested. Moreover, Plaintiff did not engage in a good faith meet and confer process prior to filing this motion.

As to the substance of the motion, Plaintiff argues, “by commenting upon evidence, unilaterally limiting questions for Whaley to answer, and repeatedly interrupting the questioning by Mr. Finaldi with speaking objections, Plaintiff’s counsel was subjected to ‘unwarranted annoyance, embarrassment, or oppression.’” Plaintiff relies upon Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, in support of its position, but the cases are not analogous. In Stewart, “[a]t the direction of Mrs. Wolfe, Wiskow refused to answer numerous questions pertaining to Hall on the ground that they were not calculated to lead to the discovery of admissible evidence. [Footnote omitted.] Doberman concluded his questioning and stated his intention to move to compel further answers.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1010.) Here, Plaintiff does identify a single time when Ms. MacIsaac instructed third-party witness Whaley to not answer a question. In fact, there is only one instance where Mr. Whaley refused to answer a question, stating, “I decline to answer,” and despite this statement, he later answered it. (Whaley Depo. 11:8.) Moreover, Plaintiff presents no caselaw for the argument that Code Civil Procedure section 2025.420 is intended to protect counsel. The majority of the deposition did not have objections from counsel. (See generally Whaley Depo.) At one point, Ms. MacIsaac asked for a copy of an exhibit, and Mr. Finaldi noted that he only had one copy. (Whaley Depo., 58:24-59:5 [introducing exhibit], 61:25-62:2; see also 63:7-13 [exhibit D, and back and forth between counsel on speaking objections].) At another point, Ms. MacIsaac attempted to object as to the question being compound, Mr. Finaldi ruled on the objection, and then when Ms. MacIsaac attempted to respond to Mr. Finaldi’s “ruling,” he threatened to end the deposition and seek sanctions. (Whaley Depo. 82:8 – 23.) As to the witness swearing, Ms. MacIsaac reminded Mr. Whaley not to swear during the deposition the first time it occurred. (Whaley Depo. 10:4-5.)

Moreover, counsel for Plaintiff, Mr. Finaldi, called opposing counsel Ms. MacIsaac “obstreperous and unprofessional” various times during the deposition sometimes for merely stating an objection and the basis for the objection. (Whaley Depo. 76:4 - 23.) Name-calling opposing counsel is unprofessional. Upon reviewing the filings and the deposition transcripts in this case, the Court further determines that civility is an issue that needs to be addressed immediately. In support of this motion, Plaintiff submitted evidence of conduct at another deposition where it appears to the Court that Plaintiff’s Counsel attempted to “shut up” opposing counsel Ms. MacIsaac by offering to “stipulate to all possible objections” during the deposition of Blanca Francia. Counsel offers, “I'll tell you what, Counsel, you have — I will stipulate right now, every objection under the sun, including privilege, is preserved. You don't have to say a word.” Ms. MacIsaac then makes various objections and Mr. Manly responds, “Why are you objecting? I just stipulated. Why are you objecting? In the middle of my question, Counsel. Just let me finish. And why are you objecting if I stipulated to everything?” (See Francia Depo Vol. II, Exhibit “M” to DVF, 367:2—9; 368:14-369:7.) The Court reads this back and forth as the equivalent of Mr. Manly telling Ms. MacIsaac: “Why are you still talking? Why don’t you shut up?” Similarly, at the Whalen deposition, Ms. MacIsaac made a reasonable objection to a poorly worded and compound question from Mr. Finaldi, which, without more, does not make Ms. MacIsaac “rude.” (Whaley Depo., 47:17 - 48:9.)

In addition, Plaintiff’s counsel’s statements made at other depositions regarding Ms. MacIssac, including statements regarding her alleged lack of legal experience or ability as an attorney, belittling her appearance (“red in the face”), making allegations regarding her emotional state and excessive breathing, and general dismissiveness will not be tolerated by the Court and smack of gender incivility. As a reminder to all counsel in this case:

The California Code of Judicial Ethics compels us to require lawyers in proceedings before us “to refrain from ... manifesting, by words or conduct, bias, prejudice, or harassment based upon race, sex, gender, gender identity, gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation ....” (Cal. Code Jud. Ethics, canon 3B(6)(a).) That goes for unconscious as well as conscious bias. Moreover, as judicial officers, we can and should take steps to help reduce incivility, including gender-based incivility. [Footnote omitted.] One method is by calling gendered incivility out for what it is and insisting it not be repeated. In a more extreme case we would be obliged to report the offending lawyer to the California State Bar. (Martinez v. O’Hara (2019) 32 Cal.App.5th 853, 854, 244 Cal.Rptr.3d 226.)

(Briganti v. Chow (Dec. 11, 2019).) The outcome of this motion serves as a reminder and the only warning that the Court will give that Plaintiff’s counsel must comport himself as an officer of the Court. While speaking objections are not generally allowed, neither is conduct that manifests gender bias or incivility. “Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537.) Plaintiff’s counsel’s reactions to Ms. MacIsaacs objections and conduct were not even closely proportionate to the underlying alleged misconduct.

Furthermore, Plaintiff was not robbed of the opportunity to depose Leroy Whaley as Plaintiff’s counsel was the one who cut the deposition short and ended it. Plaintiff’s counsel did not state that he was ending the deposition to seek a protective order. (See Code Civ. Proc., § 2025.470 [“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.”].) Instead, Plaintiff’s counsel stated that he would “include it in my motion for sanctions” against Ms. MacIsaac. (See Whaley Depo. 99:14-15.) Ms. MacIsaac offered to meet and confer during the deposition and take a break to resolve issues, but Plaintiff’s counsel refused. Plaintiff ended the deposition without justification or explanation, and without stating that he was ending it in order to seek a protective order. As such, Plaintiff is not entitled to reopen the deposition of Leroy Whaley. The motion for protective order is DENIED.

Plaintiff requests sanctions in connection with this motion. Defendants do not request sanctions. Although Defendants have not requested sanctions, the Court is obligated to impose sanctions pursuant to section 2025.420(h) 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.” (Code Civ. Proc., § 2025.420(h).) Plaintiff’s counsel has not acted with substantial justification and there are no circumstances presented to the Court where the imposition of sanctions would be unjust. The Court is also authorized to order sanctions when a party fails to meet and confer in good faith prior to filing a motion for a protective order. (Code Civ. Proc. § 2023.020.) The Court will discuss the amount of sanctions at hearing and give Defendants an opportunity to file a declaration in support of any award.


[1] Moving parties argue that, at best, this type of evidence would be inadmissible character evidence under Evidence Code section 1102(a). In determining that this evidence is not directly relevant or essential, the Court has further considered the potential admissibility on other grounds, including but not limited to modus operandi evidence, notice or imputed knowledge.

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