This case was last updated from Los Angeles County Superior Courts on 05/26/2019 at 00:47:14 (UTC).

CESAR ROMERO ET AL VS FIRST AMERICAN TITLE COMPANY ET AL

Case Summary

On 04/06/2017 CESAR ROMERO filed a Contract - Insurance lawsuit against FIRST AMERICAN TITLE COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA P. JESSNER, BARBARA M. SCHEPER and YOLANDA OROZCO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6649

  • Filing Date:

    04/06/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Insurance

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SAMANTHA P. JESSNER

BARBARA M. SCHEPER

YOLANDA OROZCO

 

Party Details

Plaintiffs and Petitioners

ROMERO TATANA S.

ROMERO CESAR

Defendants and Respondents

FIRST AMERICAN TITLE COMPANY

MAYOSKY MEREDITH BARNES

PROMINENT ESCROW SERVICES INCORPORATION

DOES 1 TO 50

BOSS DAVID G.

WOOTTON ELIZABETH A.

PROMINENT ESCROW SERVICES INC.

Plaintiff and Applicant

ROMERO CESAR

Attorney/Law Firm Details

Plaintiff Attorneys

BUCHALTER APC

BUILDERS LAW GROUP

DYE PAUL T

Defendant Attorneys

RICHARD D. MARKS PC

EARLY SULLIVAN WRIGHT GIZER & MCRAE LLP

MANNING & KASS ELLROD RAMIREZ TRESTER LLP

BOSWELL LISA L

GIZER SCOTT E

CHA JEAN H

GIDDING ZACHARY A.

ROSEN JESSICA

 

Court Documents

SUPPLEMENTAL DECLARATION OF PLAINTIFF CESAR ROMERO FILED IN SUPPORT OF HIS MOTIONS TO COMPEL FURTHER RESPONSES FROM DEFENDANTS FIRST AMERICAN TITLE INSURANCE COMPANY ("FATIC") AND FIRST AMERICAN TITLE

2/22/2018: SUPPLEMENTAL DECLARATION OF PLAINTIFF CESAR ROMERO FILED IN SUPPORT OF HIS MOTIONS TO COMPEL FURTHER RESPONSES FROM DEFENDANTS FIRST AMERICAN TITLE INSURANCE COMPANY ("FATIC") AND FIRST AMERICAN TITLE

DEFENDANTS FIRST AMERICAN TITLE COMPANY?S AND FIRST AMERICAN TITLE INSURANCE COMPANY?S NOTICE OF MOTION TO STRIKE AND/OR SEAL, AND MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF MARY C.G. KAU

4/10/2018: DEFENDANTS FIRST AMERICAN TITLE COMPANY?S AND FIRST AMERICAN TITLE INSURANCE COMPANY?S NOTICE OF MOTION TO STRIKE AND/OR SEAL, AND MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF MARY C.G. KAU

DEFENDANTS FIRST AMERICAN TITLE COMPANY'S AND FIRST AMERICAN TITLE INSURANCE COMPANY'S NOTICE OF EX PARTE APPLICATION, AND MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATIONS OF MARY C.G. KAUFMAN AN

4/11/2018: DEFENDANTS FIRST AMERICAN TITLE COMPANY'S AND FIRST AMERICAN TITLE INSURANCE COMPANY'S NOTICE OF EX PARTE APPLICATION, AND MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATIONS OF MARY C.G. KAUFMAN AN

NOTICE OF CONTINUED HEARING ON DEFENDANTS' MOTION TO STRIKE PREVIOUSLY SCHEDULED FOR MAY 2, 2018

4/24/2018: NOTICE OF CONTINUED HEARING ON DEFENDANTS' MOTION TO STRIKE PREVIOUSLY SCHEDULED FOR MAY 2, 2018

Minute Order

4/24/2018: Minute Order

NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF CESAR ROMERO

4/26/2018: NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF CESAR ROMERO

ORDER RE: DEFENDANTS FIRST AMERICAN TITLE COMPANY'S AND FIRST AMERICAN TITLE INSURANCE COMPANY'S DEMURRERS TO SECOND AMENDED COMPLAINT

5/9/2018: ORDER RE: DEFENDANTS FIRST AMERICAN TITLE COMPANY'S AND FIRST AMERICAN TITLE INSURANCE COMPANY'S DEMURRERS TO SECOND AMENDED COMPLAINT

ANSWER OF DEFENDANT PROMINENT ESCROW SERVICES, INC. SECOND AMENDED COMPLAINT

5/25/2018: ANSWER OF DEFENDANT PROMINENT ESCROW SERVICES, INC. SECOND AMENDED COMPLAINT

PLAINTIFF CESAR ROMERO?S SEPARATE STATEMENT IN SUPPORT OF HIS MOTION TO COMPEL FURTHER RESPONSES FROM DEFENDANT FIRST AMERICAN TITLE COMPANY (?FATCO?) TO PRODUCTION OF DOCUMENTS, (SET ONE); AND FOR AN

1/24/2018: PLAINTIFF CESAR ROMERO?S SEPARATE STATEMENT IN SUPPORT OF HIS MOTION TO COMPEL FURTHER RESPONSES FROM DEFENDANT FIRST AMERICAN TITLE COMPANY (?FATCO?) TO PRODUCTION OF DOCUMENTS, (SET ONE); AND FOR AN

NOTICE OF MOTION AND MOTION OF PLAINTIFF CESAR ROMERO TO COMPEL FURTHER RESPONSES FROM DEFENDANT FIRST AMERICAN TITLE COMPANY TO FORM INTERROGATORIES (SET ONE); AND FOR MONETARY SANCTIONS AGAINST DEFE

1/24/2018: NOTICE OF MOTION AND MOTION OF PLAINTIFF CESAR ROMERO TO COMPEL FURTHER RESPONSES FROM DEFENDANT FIRST AMERICAN TITLE COMPANY TO FORM INTERROGATORIES (SET ONE); AND FOR MONETARY SANCTIONS AGAINST DEFE

Minute Order

1/18/2018: Minute Order

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

11/7/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

PLAINTIFFS' OPPOSITION TO DISMISSED DEFENDANT DAVID G. BOSS'S MOTION TO STRIKE THE REMAINING THIRD AND FIFTH CAUSES OF ACTION OF THE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-

10/10/2017: PLAINTIFFS' OPPOSITION TO DISMISSED DEFENDANT DAVID G. BOSS'S MOTION TO STRIKE THE REMAINING THIRD AND FIFTH CAUSES OF ACTION OF THE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-

PLAINTIFFS' EVIDENTIARY OBJECTIONS TO DECLARATION OF DAVID G. BOSS IN SUPPORT OF DEFENDANT DAVID G. BOSS'S MOTION TO STRIKE THE REMAINING THIRD AND FIFTH CAUSES OF ACTION OF THE COMPLAINT PURSUANT TO

10/10/2017: PLAINTIFFS' EVIDENTIARY OBJECTIONS TO DECLARATION OF DAVID G. BOSS IN SUPPORT OF DEFENDANT DAVID G. BOSS'S MOTION TO STRIKE THE REMAINING THIRD AND FIFTH CAUSES OF ACTION OF THE COMPLAINT PURSUANT TO

DEFENDANT FIRST AMERICAN TITLE COMPANY'S DECLARATION OF SCOTT E. GIZER RE: INABILITY TO COMPLY WITH MEET AND. CONFER REQUIREMENT

5/30/2017: DEFENDANT FIRST AMERICAN TITLE COMPANY'S DECLARATION OF SCOTT E. GIZER RE: INABILITY TO COMPLY WITH MEET AND. CONFER REQUIREMENT

DECLARATION OF KAREN MARBLE RE GOOD FAITH ATTEMPTS TO MEET AND CONFER PRIOR TO DEMURRER

6/8/2017: DECLARATION OF KAREN MARBLE RE GOOD FAITH ATTEMPTS TO MEET AND CONFER PRIOR TO DEMURRER

AMENDED PROOF OF SERVICE RE NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; ETC

7/11/2017: AMENDED PROOF OF SERVICE RE NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; ETC

DECLARATION OF SCOTT E. GIZER RE: INABILITY TO COMPLY WITH MEET AND CONFER REQUIREMENT REGARDING DEFENDANTS FIRST AMERICAN TITLE INSURANCE COMPANY'S AND FIRST AMERICAN TITLE COMPANY'S DEMURRERS TO TIL

9/22/2017: DECLARATION OF SCOTT E. GIZER RE: INABILITY TO COMPLY WITH MEET AND CONFER REQUIREMENT REGARDING DEFENDANTS FIRST AMERICAN TITLE INSURANCE COMPANY'S AND FIRST AMERICAN TITLE COMPANY'S DEMURRERS TO TIL

215 More Documents Available

 

Docket Entries

  • 05/17/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party

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  • 05/10/2019
  • Separate Statement; Filed by no Erroneously Sued As First American Title Company (Defendant)

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  • 05/10/2019
  • Declaration (in Support of Motion to Compel Further Responses to Form Interrogatories, Set Two); Filed by no Erroneously Sued As First American Title Company (Defendant)

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  • 05/10/2019
  • Motion to Compel Further Discovery Responses; Filed by no Erroneously Sued As First American Title Company (Defendant)

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  • 05/10/2019
  • Separate Statement; Filed by no Erroneously Sued As First American Title Company (Defendant)

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  • 05/10/2019
  • Motion to Compel Further Discovery Responses; Filed by no Erroneously Sued As First American Title Company (Defendant)

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  • 05/10/2019
  • Declaration (In Support of Motion to Compel Further Responses to Special Interrogatories, Set 3); Filed by no Erroneously Sued As First American Title Company (Defendant)

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  • 05/10/2019
  • Separate Statement; Filed by no Erroneously Sued As First American Title Company (Defendant)

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  • 05/10/2019
  • Motion to Compel Further Discovery Responses; Filed by no Erroneously Sued As First American Title Company (Defendant)

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  • 05/10/2019
  • Declaration (in Support of Motion to Compel Further Responses to Requests for Admission, Set Two); Filed by no Erroneously Sued As First American Title Company (Defendant)

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626 More Docket Entries
  • 05/17/2017
  • PROOF OF SERVICE SUMMONS

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  • 05/17/2017
  • PROOF OF SERVICE SUMMONS

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  • 05/17/2017
  • PROOF OF SERVICE SUMMONS

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  • 04/11/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/11/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 04/11/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 04/11/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 04/06/2017
  • COMPLAINT FOR DAMAGES BAD FAITH ;ETC

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  • 04/06/2017
  • Complaint; Filed by Cesar Romero (Plaintiff); Tatana S. Romero (Plaintiff)

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  • 04/06/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC656649    Hearing Date: January 31, 2020    Dept: 31

MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA IS DENIED.

Background

Plaintiffs Cesar Romero (“Cesar”) and Tatana Romero (“Tatana”) sued Defendants First American Title Insurance Company (hereinafter “FATIC”), First American Title Company, and Prominent Escrow Services, Inc. for compensatory and injunctive relief, based on allegations that Plaintiffs’ non-party neighbor’s home improvements encroached onto Plaintiffs’ property. Plaintiffs also claim that FATIC, which provided Plaintiffs’ title insurance, acted in bad faith by improperly favoring Plaintiffs’ neighbors, “Shih/Ko,” in the dispute over the alleged encroachment and failed to pay Plaintiffs adequate damages to compensate for the diminution in value of their property caused by the encroachment. In the operative Second Amended Complaint (“SAC”), Plaintiffs assert causes of action for:

  1. Breach of Contract by Escrow Agents and Fiduciaries for Failure to Comply with Instructions;

  2. Negligence by Escrow Agents and Fiduciaries in the Performance of Their Duties;

  3. Breach of Fiduciary Duty;

  4. Damages for Negligent Representation;

  5. Damages for Fraud;

  6. Breach of Insurance Contract;

  7. Breach of the Duty of Good Faith and Fair Dealing; and

  8. Unfair Business Practices.

    The sixth, seventh, and eighth causes of action are pending against FATIC because the Court sustained FATIC’s demurrer to the first, second, third, fourth, and fifth causes of action without leave to amend on May 9, 2018. Also as a result of sustaining the demurrer without leave to amend on May 9, 2019, Defendant First American Title Company was dismissed with prejudice, as the first through fifth causes of action were the only ones asserted against it. On January 31, 2019, Plaintiffs dismissed Defendant Prominent Escrow Services, Inc. with prejudice.

    Plaintiffs seek an order compelling third-parties Janet Humphrey (hereinafter “Humphrey”) & Songstad Randall Coffee & Humphrey’s (“Songstad”) compliance with the deposition subpoena for business records served on November 10, 2019. 

Legal Standard

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records. (Code Civ. Proc., § 2020.010.) A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., § 2020.020.)

Service of a deposition subpoena shall be effected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition. (Code Civ. Proc., § 2020.220, subd. (a).) Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies. (Code Civ. Proc., § 2020.220, subd. (c).) A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness. (Code Civ. Proc., § 2020.240.)

A “written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, Rule 3.1346.)

Request for Judicial Notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) 

Songstad requests that the Court take judicial notice of the December 3, 2019 Order denying Plaintiffs’ Order to Show Cause Re: Contempt. The request is GRANTED.

Plaintiffs request that the Court take judicial notice of a number of documents filed in this case. The request is GRANTED.

Evidentiary Objections

Songstad submits objections to the Declaration of Cesar Romero. The objections are immaterial to the Court’s disposition. The Court thus declines to rule upon them.

Plaintiffs also submit objections to the Declaration of Jenna Griffin. The objections are similarly immaterial to the Court’s disposition. The Court thus declines to rule upon them.

Discussion

Plaintiffs move for an order compelling Humphrey and Songstad’s compliance with a deposition subpoena for business records served on Songstad on November 10, 2019. The Court notes at the outset that the instant motion is inappropriately targeted at Humphrey, individually, whose name does not appear on the deposition subpoena. (Romero Decl., Exh. A.) The Court cannot compel compliance with a deposition subpoena that does not exist. Accordingly, the Court ignores Plaintiffs’ arguments regarding Humphrey’s non-compliance and instead focuses on the arguments relating to Songstad.

Plaintiffs assert that on November 27, 2019, in response to the subpoena, Songstad served objections. Plaintiffs contend that Songstad has failed and refuses to comply with the subpoena. Plaintiffs argue that to date, Songstad has not produced any of the requested documents. 

Plaintiffs argue that good cause exists to grant this motion because of all of the documents sought are in Songstad’s possession and relate directly to this case and Plaintiffs’ claims that Songstad and Defendant have colluded and illegally shared Plaintiffs’ confidential information in order to jointly defeat Plaintiffs in both actions. Plaintiffs assert that moreover, none of the requested documents are privileged in any way, shape, or form. Plaintiffs contend that there is nothing privileged about conversations that Songstad had with Lisa Weinberg, Plaintiffs’ former counsel in this action; all the meetings and communications that Songstad had with Scott Gizer, Lisa Boswell, and/or Zach Gidding, Defendant’s attorneys of record in this action. Plaintiffs argue that there is nothing privileged about Songstad’s communications with any other third party.

The subpoena seeks the following documents:

  1. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Lisa Weinberg RELATING TO the Romero property.

  2. Any and all DOCUMENTS RELATING TO, and reflecting any and_ all COMMUNICATIONS between YOU and Lisa Weinberg RELATING TO the Shih/Ko property.

  3. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Lisa Weinberg RELATING TO the ENCROACHMENT CASE.

  4. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Lisa Weinberg RELATING TO the BAD FAITH CASE.

  5. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and The Boss Law firm RELATING TO the Romero property.

  6. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and The Boss Law firm RELATING TO the bt Shih/Ko property.

  7. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and The Boss Law firm RELATING TO ENCROACHMENT CASE.

  8. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and The Boss Law firm RELATING TO the BAD FAITH CASE.

  9. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and any FATIC RELATING TO the Romero property.

  10. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and any FATIC RELATING TO the Shih/Ko property.

  11. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and any FATIC RELATING’ TO ENCROACHMENT CASE.

  12. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and any FATIC RELATING TO the BAD FAITH CASE.

  13. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Early Sullivan Wright Gizer & McRae LLP RELATING TO the Romero property.

  14. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Early Sullivan Wright Gizer & McRae LLP RELATING TO the Shih/Ko property.

  15. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Early Sullivan Wright Gizer & McRae LLP RELATING TO ENCROACHMENT CASE.

  16. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Early Sullivan Wright Gizer & McRae LLP RELATING TO the BAD FAITH CASE.

  17. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and David Tsai RELATING TO the Romero property.

  18. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and David Tsai RELATING TO the Shih/Ko property.

  19. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and David Tsai RELATING TO ENCROACHMENT CASE.

  20. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and David Tsai RELATING TO the BAD FAITH CASE.

  21. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Richard Walden RELATING TO the Romero property.

  22. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Richard Walden RELATING TO the Shih/Ko property.

  23. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Richard Walden RELATING TO ENCROACHMENT CASE.

  24. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Richard Walden RELATING TO the BAD FAITH CASE.

  25. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Burris, Schoenberg & Walden, LLP RELATING TO the Romero property.

  26. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Burris, Schoenberg & Walden, LLP RELATING TO the Shih/Ko property.

  27. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and Burris, Schoenberg & Walden, LLP RELATING TO ENCROACHMENT CASE.

  28. Any and all DOCUMENTS RELATING TO, and reflecting any and_ all COMMUNICATIONS between YOU and Burris, Schoenberg & Walden, LLP RELATING TO the BAD FAITH CASE.

  29. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and any other PERSON, other than Shih/Ko, RELATING TO the Romero property.

  30. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and any other PERSON, other than Shih/Ko, RELATING TO the Shih/Ko property.

  31. Any and all DOCUMENTS RELATING TO, and reflecting any and all COMMUNICATIONS between YOU and any other PERSON, other than Shih/Ko, RELATING TO ENCROACHMENT CASE.

  32. Any and all DOCUMENTS RELATING TO, and reflecting any and_ all COMMUNICATIONS between YOU and any other PERSON, other than Shih/Ko, RELATING TO the BAD FAITH CASE.

Notice to Consumer

Code of Civil Procedure section 1985.3 provides:

  1. For the purposes of this section, the following definitions apply:

(1) “Personal records” means the original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any “witness” which is a[n] . . . attorney. . .

(2) “Consumer” means any individual, partnership of five or fewer persons, association, or trust which has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary. . . .

(b) Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows:

(1) To the consumer personally, or at his or her last known address, or in accordance with Chapter 5 (commencing with Section 1010) of Title 14 of Part 3, or, if he or she is a party, to his or her attorney of record. If the consumer is a minor, service shall be made on the minor's parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is at least 12 years of age.

(2) Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail.

(3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail. . . . 

(k) Failure to comply with this section shall be sufficient basis for the witness to refuse to produce the personal records sought by a subpoena duces tecum.

(Code Civ. Proc., § 1985.3(a)-(b), (k).)

Songstad first opposes the instant motion arguing that Plaintiffs have failed to serve a Notice of Consumer on the Shih/Kos, as admitted in Plaintiffs’ separate statement. Songstad argues that as a general rule, the papers and property that are accumulated by the attorney during the course of the relationship belong to the client, whether or not the attorney has been paid for his services. (Weiss v. Marcus (1975) 51 Cal.App.3d 590, 599; see California Rules of Professional Conduct Rule 3-700(D)(1) (“‘Client papers and property’ includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not”).) Songstad asserts that the documents sought by the subpoena are therefore “personal records” and the failure to serve the Notice to Consumer on the Shih/Kos is grounds alone to deny the motion.

In reply, Plaintiffs argue that a notice to consumer was not necessary because Plaintiffs did not seek consumer records within the Section 1985.3 definition of “personal records.” Citing to Sasson v. Katash ((1983) 146 Cal.App.3d 119), Plaintiffs assert that the purpose of the statutory requirement for a notice to consumer is to inform the consumer of the intended invasion of his or her privacy and to be given the opportunity to oppose it, which is not the case here. Plaintiffs contend that it was never the intent of the subpoena to seek privileged documents or documents pertaining to personal and confidential information about Shih/Ko that would invade their privacy rights protected by Section 1985.3. Plaintiffs argues that rather, the intent of the subpoena was to seek documents reflecting Songstad’s communications with third parties relating to, among other things, this bad faith action.

Plaintiffs assert that even if the Court were to agree with Songstad that some of the requested documents may fall within the meaning of “personal records,” it does not automatically invalidate the entire subpoena and does not absolve Songstad from the legal obligation to comply with the subpoena relating to all other non-personal records. Plaintiffs contend that Songstad unilaterally decided without providing any factual support that all documents are “personal records” in order to evade its obligation, which is improper. 

Plaintiffs argue that moreover, Songstad and Richard Walden, the Shih/Kos personal counsel, are assisting Shih/Ko in evading service of the subpoena. Plaintiffs assert that Humphrey was served with the subpoena and could have very easily accepted service on behalf of the Shih/Kos and filed a Protective Order if the Shih/Kos objected to the subpoena. Plaintiffs contend that it appears that the Shih/Kos are not objecting to the subpoena and that Songstad is merely concerned with a technicality which they are exploiting because the Shih/Kos live in China.

The Court finds that Plaintiffs have failed to personally serve a Notice to Consumer on the Shih/Kos, as conceded in their Separate Statement, and that such a failure to personally serve the Notice is adequate grounds for Songstad’s refusal to produce the documents sought by the subpoena. Plaintiffs argument that the subpoena does not seek “personal records” as defined by Section 1985.3 is unpersuasive, as the Rules of Professional Conduct make clear that any items “reasonably necessary to the client’s representation” is the property of the client. It is undisputed here that the records sought by the subpoena concern communications with third parties by Songstad as counsel for Shih/Ko. Accordingly, such documents are the Shih/Kos’ “personal records” maintained by Songstad as Shih/Kos’ attorney.

Plaintiffs’ assertion that Songstad and Walden are assisting the Shih/Kos in evading service of the subpoena is unsupported by evidence and is mere speculation. Moreover, neither Songstad or Walden are required to accept service on behalf of their clients when the Shih/Kos are within their right to seek personal service of the Notice to Consumer. Here, the Shih/Kos are not a party to the instant litigation. Accordingly, pursuant to Section 1985.3(b)(1), Plaintiffs may not serve their counsel but must serve the Shih/Kos personally.

Based on the foregoing, Plaintiffs’ motion to compel compliance with the deposition subpoena for business records served on Songstad Randall Coffee & Humphrey is DENIED in its entirety.

Case Number: BC656649    Hearing Date: January 30, 2020    Dept: 31

MOTION FOR AN INDEPENDENT MENTAL EXAMINATION OF PLAINTIFFS IS GRANTED.

Background

Plaintiffs Cesar Romero (“Cesar”) and Tatiana Romero sued Defendants First American Title Insurance Company (hereinafter “FATIC”), First American Title Company, and Prominent Escrow Services, Inc. for compensatory and injunctive relief, based on allegations that Plaintiffs’ non-party neighbor’s home improvements encroached onto Plaintiffs’ property. Plaintiffs also claim that FATIC, which provided Plaintiffs’ title insurance, acted in bad faith by improperly favoring Plaintiffs’ neighbors, “Shih/Ko,” in the dispute over the alleged encroachment and failed to pay Plaintiffs adequate damages to compensate for the diminution in value of their property caused by the encroachment. In the operative Second Amended Complaint (“SAC”), Plaintiffs assert causes of action for:

  1. Breach of Contract by Escrow Agents and Fiduciaries for Failure to Comply with Instructions;

  2. Negligence by Escrow Agents and Fiduciaries in the Performance of Their Duties;

  3. Breach of Fiduciary Duty;

  4. Damages for Negligent Representation;

  5. Damages for Fraud;

  6. Breach of Insurance Contract;

  7. Breach of the Duty of Good Faith and Fair Dealing; and

  8. Unfair Business Practices.

    The sixth, seventh, and eighth causes of action are pending against FATIC because the Court sustained FATIC’s demurrer to the first, second, third, fourth, and fifth causes of action without leave to amend on May 9, 2018. Also, as a result of sustaining the demurrer without leave to amend on May 9, 2019, Defendant First American Title Company was dismissed with prejudice, as the first through fifth causes of action were the only ones asserted against it. On January 31, 2019, Plaintiffs dismissed Defendant Prominent Escrow Services, Inc. with prejudice.

    Defendant moves for an order compelling the mental examinations of Plaintiffs.

Legal Standard

California Code of Civil Procedure section 2032.310 provides that a party shall obtain leave of court if the party desires to obtain discovery by a mental examination. (See Code Civ. Proc. § 2032.310(a).) Such leave may be granted only upon a showing of “good cause.” (Id.

Request for Judicial Notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) 

Defendant requests that the Court take judicial notice of the SAC filed in this case on January 29, 2018. The request is GRANTED.

Evidentiary Objections

Plaintiffs submit a number of objections to the Declaration of Lisa Boswell. The objections are OVERRULED. 

Plaintiffs also submit objections to the Declaration of Suzanne Dupee and Zach Gidding. The objections are OVERRULED.

Defendant submits objections to the Declarations of Cesar Romero and Tatiana Romero and the letter from Philip Corrado, Ph.D. The objections are immaterial to the Court’s disposition of the motion. The Court therefore declines to rule upon them.

Discussion

Procedural Requirements

The motion must specify the time, place, manner, conditions, scope, and nature of the examination. (Code Civ. Proc. § 2032.310(b).) The motion must also specify the identity and specialty of the person who will be performing the examination. (Id.) A meet and confer declaration must also accompany the motion. (Id.)

Defendant’s motion complies with the procedural requirements of Section 2032.310, indicating that the examinations will take place at the office of psychiatrist Suzanne Dupee, M.D., located at 1148 Manhattan Avenue, Suite 9, Manhattan Beach, California 90266, within 30 days of the hearing of this motion. Dr. Dupee is a licensed clinical psychiatrist and board certified by the American Board of Psychiatry and Neurology including a subspecialty in forensic psychiatry. The examination will take between three to four hours, excluding psychological testing, which can take an additional two to four hours. (Boswell Decl., Exh. 12.) No other person may be present in the room during the evaluation. (Toyota Motor Sales, U.S.A., Inc. v. Superior Court of Los Angeles County (2010) 189 Cal.App.4th 1391, 1396.)

The examination will consist of “taking a very detailed history of the plaintiff using a medical/psychiatric history taking model, i.e., history of presenting problems/issues, past medical history, past psychiatric history, review of systems, substance abuse history, personal history, educational history, employment history, forensic/legal history and conducting a mental status examination.” (Boswell Decl., Exh. 12.) The psychological testing depends on the case history, however, Dr. Dupee “always conduct[s] an MMPI-2 (Minnesota Multiphasic Personality Inventory-2) or MMPI-2-RF (a shorter version), Personality Assessment Inventory (PAI) and the Mini Mental State Examination (MMSE).” (Boswell Decl., Exh. 12.) Further tests might include the Trauma Symptom Inventory-2 (TSI-2). (Boswell Decl., Exh. 12.) If further psychological testing is requested, Dr. Dupee works with several psychologists on the case. (Boswell Decl., Exh. 12.)

Defendant asserts that it initiated a meet and confer with Plaintiffs’ former counsel on August 29, 2019, seeking a stipulation to submit to mental health examinations without the need for a court order. (Boswell Decl. ¶ 6.) Defendant contends that since that time, Defendant has met and conferred directly with Plaintiffs in their pro per status regarding Defendant’s need for the mental examinations of Plaintiffs. (Boswell Decl. ¶ 7.) Defendant argues that its subsequent meet and confer efforts with Plaintiffs, including an offer to stipulate to the confidentiality of said exams, have been unsuccessful. (Boswell Decl. ¶ 12.)

Good Cause

A Court Order for physical or mental examination must be based on a showing of “good cause.” (Code Civ. Proc., § 2032.320(a).) This generally requires a showing of both relevancy to the subject matter and specific facts justifying discovery; i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere. (Lee Smalley Edmon & Curtis E.A. Karnow, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018), ¶ 8:1557.) “While a plaintiff may place his mental state in controversy by a general allegation of severe emotional distress, the opposing party may not require him to undergo psychiatric testing solely on the basis of speculation that something of interest may surface.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)

Defendant argues that good cause exists for Dr. Dupee’s exam. Defendant asserts that Plaintiffs have formally placed their mental conditions at issue in this action by asserting severe emotional distress claims and associated damages in their SAC, written discovery responses, and deposition testimony, including those associated with their continuing treatment with Philip Corrado, Ph.D. in this action. (SAC ¶ 111, 113, 187; Boswell Decl., Exh. 2.) Defendant contends that Plaintiffs’ claims include continued “sleep disturbances, anxiety, depression, tension, lack of appetite, and gastrointestinal discomforts and indigestion” and the inability to “start a family in their dream house, leading to further great depression and anxiety.” (Id.; Boswell Decl., Exh. 3.) Defendant argues that an investigation of Plaintiffs’ mental and cognitive potential is the only manner in which Defendant may evaluate the merits of Plaintiffs’ claims and properly prepare its defense given that the nature and extent of Plaintiffs’ damages will be a critical issue at trial.

Defendant further asserts that it will suffer irreparable harm if the motion is not granted. Defendant contends that it has no viable alternative for obtaining the discovery sought by this motion and if the motion is denied, it will be extremely prejudiced as its experts would not be able to adequately provide opinions regarding Plaintiffs’ injuries and claimed damages. Defendant argues that its experts should be given the same opportunity to evaluate Plaintiffs as Plaintiffs’ physicians have had in rendering their opinions. Defendant asserts that without this examination, it will be deprived of a fair trial.

In opposition, Plaintiffs argue that the Court previously dismissed a cause of action for emotional distress due to insufficient allegations of severe emotional distress, rending any mental examination unjustified. Plaintiffs assert that since this Court previously decided that Plaintiffs have only suffered garden variety emotional distress this is not severe in nature, the motion to compel must be denied.

Plaintiffs also contend that Defendant has failed to establish specific facts justifying the need for the mental examinations. Plaintiffs assert that Plaintiffs’ cognitive potential is not at issue in this action and any kind of evaluation of Plaintiffs’ cognitive function should be barred. Plaintiffs contend that, additionally, Defendant is already in possession of the information it seeks, which became available to them through other means, as Defendant has propounded hundreds of interrogatories, has conducted a lengthy deposition of Plaintiffs where they questioned Plaintiffs about the impact of Defendant’s conduct on Plaintiffs’ lives, and has been provided Plaintiffs’ medical records from Dr. Corrado. Plaintiffs finally argue that they have not retained a mental health expert to give any opinion testimony because Plaintiffs’ cause of action for intentional infliction of emotional distress was thrown out by the Court.

In reply, Defendant argues that Plaintiffs’ claims for emotional distress survived the demurrer that Plaintiffs point to and are recited in the general allegations of their SAC and in their surviving seventh cause of action for breach of the duty of good faith and fair dealing. Defendant asserts that the allegations and discovery responses make clear that Plaintiffs’ emotional distress claims are in controversy, ongoing, and anything but garden variety. Defendant further contends that Plaintiffs have actively treated with a psychologist, Philip Corrado, Ph.D., for their injuries, are seeking the costs of his treatment as damages, and have designated him as a non-retained expert. (Gidding Decl., ¶ 2.)

Defendant additionally submits Dr. Corrado’s records which Defendant contends reflect the full extent of Plaintiffs’ emotional distress claims. Defendant argues that unless Plaintiffs stipulate to waive their claims for emotional distress and any associated damages including waiving their right to offer any testimony or other evidence on these issues at trial, then the mental examinations must go forward.

The Court finds that good cause exists in this case as Plaintiffs have alleged emotional distress and associated damages in their SAC, written discovery responses, and deposition testimony. (SAC ¶ 111, 113, 187; Boswell Decl., Exh. 2, Exh. 3.) Contrary to Plaintiffs’ arguments, while Plaintiffs’ cause of action for intentional infliction of emotional distress was dismissed on demurrer, Plaintiffs’ claims of emotional distress in connection with the seventh cause of action for breach of the duty of good faith and fair dealing survived. Moreover, the medical records provided by Defendant clearly indicate that Plaintiffs are claiming emotional distress beyond that of the garden variety. Here, as in Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-40, good cause exists for a mental examination: “In the case at bar, plaintiff haled defendants into court and accused them of causing her various mental and emotional ailments. Defendants deny her charges. As a result, the existence and extent of her mental injuries is indubitably in dispute.” “Plaintiff's present mental and emotional condition is directly relevant to her claim and essential to a fair resolution of her suit; she has waived her right to privacy in this respect by alleging continuing mental ailments.” (Id. at 842.) Consistent with this authority, the Court finds there is ample good cause for a mental examination in this case.

Burden and Intrusion Upon Plaintiffs

“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.” (Code of Civil Procedure § 2017.020.)

Plaintiffs argue that even if good cause exists, it is outweighed by the burden and intrusion upon Plaintiffs. Plaintiffs assert that the proposed scope is overbroad, improper, and violates Plaintiffs’ constitutional right to privacy. Plaintiffs contend that a motor function evaluation, a cognitive function evaluation, and memory function evaluation are all tests completely outside the scope of and irrelevant to this lawsuit, as Plaintiffs have never alleged any loss of motor function, cognitive function, or memory in any causes of action. Plaintiffs argue that their own therapist does not believe that a mental exam is warranted in this circumstance and that Plaintiffs’ mental health is not actually in controversy.

Plaintiffs assert that Defendant’s mental examination demand has no limitations in place with regards to scope of the examination and contend that should the Court feel inclined to grant the motion, it must impose strict time limitations as well as strict privacy limitations. Plaintiff requests that the Court limit the duration of the examination to 1 to 2 hours maximum; limit the scope and nature of the examination to only issues raised by Plaintiffs and relevant to this litigation; explicitly prohibit the examiner from audio taping the examination; explicitly prohibit the examiner from asking or taking Plaintiffs’ medical or clinical history; explicitly prohibit the examiner from asking fact-finding questions; allow Plaintiffs attend together as a couple; require Defendant to produce a record or report of the examination to be delivered to Plaintiffs within 10 days of the examination; and require Defendant to enter into a productive order with Plaintiffs to prevent dissemination to any third parties and to include a significant financial penalty of one million dollars ($1,000,000.00) or more if, or when, Defendant breaks the protective order.

In reply, Defendant argues that the scope and nature of the examinations sought are not overbroad. Defendant asserts that the Declaration of Suzanne Dupee provides more detail as to the scope of the contemplated mental examinations including the reason why all the tests are not identified in advance. (Dupee Decl., ¶ 6-14.) Defendant contends that while Plaintiffs take issue with the scope and relevancy of the exams, including cognitive, motor, and memory functioning aspects, Dr. Dupee is a licensed clinical psychiatrist and board certified by the American Board of Psychiatry and Neurology, including a subspecialty in forensic psychiatry. Defendant argues that her written protocol makes clear that “[t]he psychological testing battery depends on the case history.” It is clear that Dr. Dupee will hone the scope of the examination based upon her background, training, and experience once she has taken Plaintiffs’ history. Defendant contends that the scope of the written protocol and the motion are sufficiently broad to permit Dr. Dupee to conduct the examination in conformity with accepted psychiatric standards once she has conducted the history portion of the examination.

Defendant argues that Dr. Corrado is not competent to offer any opinions relevant to this motion nor are Plaintiffs. As to the restrictions requested by Plaintiffs, including a joint examination, a 1-2 hour maximum, and a bar on audio taping, Defendant asserts that there is no legal or factual cause to place restrictions on the mental examinations. Defendant contends that as to Plaintiffs’ request to bar audio taping, Section 2032.530(a) specifically provides that “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.”

As to Plaintiffs’ request for a joint examination, Defendant argues that Dr. Dupee’s declaration provides insight into how medical examinations are administered as well as why the results would be compromised if done in the presence of someone else such as an attorney or spouse. (Dupee Decl. ¶ 6-14.) Quoting Toyota Motor Sales (supra, 189 Cal.App.4th at 1396-1397), Defendant argues that “‘[s]urely the presence and participation of counsel [in a mental examination] would hinder the establishment of the rapport that is so necessary in a psychiatric examination.’ [Citation.] . . . Absent evidence to the contrary . . ., it must be presumed that the examiners will act appropriately.” Defendant asserts that here, Plaintiffs are not only husband and wife, but representing themselves pro per. Defendant contends that as such, the same hinderance effect discussed in Toyota would apply to an examination in which both Plaintiffs are present as with the examinee’s attorney.

As to Plaintiffs’ proposed time constraints, Defendant argues that aside from being their stated preference, Plaintiffs have failed to demonstrate a legitimate need to reduce the examination time to 1-2 hours. Defendant asserts that the mental examinations should therefore be ordered in conformity with Dr. Dupee’s written protocol without a preset time limit.

The Court finds that Defendant’s showing of good cause is not outweighed by any purported burden or intrusion upon Plaintiffs. Based on the record before the Court, it is clear that despite Plaintiffs’ arguments otherwise, the proposed examinations are entirely within the scope of the SAC’s allegations and Plaintiffs’ discovery responses and deposition testimony. Moreover, nothing before the Court indicates that Dr. Dupee would not act appropriately and expeditiously in administering the tests and examinations indicated. Plaintiffs have not provided adequate support for the requested limitations on the medical examinations, the request to attend a joint examination, or their request for an order requiring Defendant to enter into a protective order that would include a financial penalty of $1,000,000.00.

Based on the foregoing, Defendant’s motion to compel the independent mental examinations of Plaintiffs is GRANTED. The examinations shall be conducted individually as to each Plaintiff, and no one else can be in the room during the examination other than the Plaintiff subject to the examination. Each examination cannot exceed more than 8 hours, excluding breaks. The Court declines Plaintiffs’ request to impose monetary sanctions. The Court encourages the parties to agree to a reasonable protective order to safeguard the information which may be gleaned from the subject examinations.

Defendant First American Title Insurance Company’s Motion to Compel Compliance with Deposition Subpoena for Production of Documents is CONTINUED to Friday, March 6, 2020 at 8:30 am. 

MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES IS GRANTED.

Background

Plaintiffs Cesar Romero (“Cesar”) and Tatana Romero (“Tatana”) sued Defendants First American Title Insurance Company (hereinafter “FATIC”), First American Title Company, and Prominent Escrow Services, Inc. for compensatory and injunctive relief, based on allegations that Plaintiffs’ non-party neighbor’s home improvements encroached onto Plaintiffs’ property. Plaintiffs also claim that FATIC, which provided Plaintiffs’ title insurance, acted in bad faith by improperly favoring Plaintiffs’ neighbors, “Shih/Ko,” in the dispute over the alleged encroachment and failed to pay Plaintiffs adequate damages to compensate for the diminution in value of their property caused by the encroachment. In the operative Second Amended Complaint (“SAC”), Plaintiffs assert causes of action for:

  1. Breach of Contract by Escrow Agents and Fiduciaries for Failure to Comply with Instructions;

  2. Negligence by Escrow Agents and Fiduciaries in the Performance of Their Duties;

  3. Breach of Fiduciary Duty;

  4. Damages for Negligent Representation;

  5. Damages for Fraud;

  6. Breach of Insurance Contract;

  7. Breach of the Duty of Good Faith and Fair Dealing; and

  8. Unfair Business Practices.

    The sixth, seventh, and eighth causes of action are pending against FATIC because the Court sustained FATIC’s demurrer to the first, second, third, fourth, and fifth causes of action without leave to amend on May 9, 2018. Also, as a result of sustaining the demurrer without leave to amend on May 9, 2019, Defendant First American Title Company was dismissed with prejudice, as the first through fifth causes of action were the only ones asserted against it. On January 31, 2019, Plaintiffs dismissed Defendant Prominent Escrow Services, Inc. with prejudice.

    Defendant moves for an order compelling Plaintiffs to provide further responses to Special Interrogatories, Set Four, Nos. 28-34 propounded on Plaintiff Cesar and Special Interrogatories, Set Three, Nos. 25-31 propounded on Plaintiff Tatana.

    Legal Standard

    A motion to compel further responses to form or specially prepared interrogatories may be brought if the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2030.300(a).)

    Motions to compel further responses must always be accompanied by a meet-and confer-declaration (Code Civ. Proc., § 2016.040) demonstrating a “reasonable and good faith attempt an informal resolution of each issue presented by the motion.” (Id., §§ 2030.300(b), 2031.310(b)(2), 2033.290(b).) They must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (Cal. Rules of Court, rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (Id., rule 3.1345(c).)

    Request for Judicial Notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) 

Evidentiary Objections

Defendant also submits a number of objections to the Declarations of Cesar Romero and Tatana Romero. The objections are immaterial to the Court’s disposition. The Court therefore declines to rule upon them.

Discussion

Defendant argues that Plaintiffs have and continue to claim that they have suffered and continue to suffer severe emotional distress due to the amount of legal fees they have paid to litigate this case and the related case as a result of Defendant’s conduct. Defendant asserts that Plaintiffs claims include damages “by having to pay out of pocket attorney fees, expenses and costs associated with the Encroaching Area Litigation” and “the constant worry and financial ruin” cause a whole assortment of medical conditions. (SAC ¶ 63, 111.) Defendant contends that Plaintiffs specifically claim that “[t]his vexatious litigation has caused, and continues to cause, the Romeros severe financial stress in addition to humiliation, emotional stress and anxiety . . . [T]he constant worry and financial ruin . . . continues to cause the Romeros to suffer from, among other things, sleep disturbances, anxiety, depression, tension, lack of appetite, and gastrointestinal discomforts and indigestion.” (SAC ¶ 111.) Defendant argues that Plaintiffs further allege that they have “exhausted all of their life savings and were forced to incur astronomical debts . . . to pay for attorney fees and litigation costs out of pocket” while they “constantly worry about money, [and] about their inability to pay for attorney fees.” (SAC ¶ 112.) Defendant asserts that finally, Plaintiffs allege that “with all of their life savings gone and debts that are astronomical, the Romeros have been unable to start a family in their dream house, leading to further great depression and anxiety. (SAC ¶ 113.)

Defendant asserts that despite this information being clearly discoverable and relevant, Plaintiffs have failed to disclose the actual figure. (Boswell Decl. ¶ 4-6, Exh. 2-3.) Defendant contends that Plaintiffs failed to provide proper substantive responses to any of the interrogatories at issue here. Defendant argues that in response to the interrogatories, Plaintiffs provided information on the amounts “incurred” and not the amounts the Plaintiffs have actually paid. (Boswell Decl. ¶ 4, Exh. 2.)

Interrogatory Nos. 25-26

Special Interrogatory No. 25 to Plaintiff Tatana and No. 28 to Plaintiff Cesar states:

Please state the amount of attorney fees YOU have paid any attorney, law firm, or other entity to litigate the SHIH/KO ACTION up to and including the date YOU serve YOUR responses to these interrogatories, including the name of each attorney, law firm, or other entity to whom YOU paid such fees.

Special Interrogatory No. 26 to Plaintiff Tatana and No. 29 to Plaintiff Cesar states:

Please state the amount of attorney fees YOU paid an attorney, law firm, or other entity to litigate the SHIH/KO ACTION up to and including March 23, 2017, including the name of and amount paid to each attorney, law firm or other entity to whom YOU paid such fees.

In response, Plaintiffs object to the interrogatories on the grounds of attorney-client privilege, Plaintiff’s right to privacy, and that the information sought is not relevant to the subject matter of this case or reasonably calculated to lead to the discovery of admissible evidence. Without waiting the objections, Plaintiffs respond stating that the “fees and charges are included in the invoices from the relevant attorneys which have been produced to FIRST AMERICAN.” Plaintiffs further respond that based on current information, “Plaintiffs believe that they have incurred the following legal fees and charges with respect to the SHIH/KO ACTION:

  1. Law Office of Richard Samuel Price

    Invoice Dates Fees Costs/Expenses Total

    8/1/15-10/1/15 $4,592.50 $23.25 $4,615.85

  2. Gaines & Stacey, LLP

    Invoice Dates Fees Costs/Expenses Total

3/1/16-5/3/17 $110,607.10 $6,524.17 $117,131.27

(Does not offset amounts paid by FIRST AMERICAN.)

  1. Goodkin Law Group

    Invoice Dates Fees Costs/Expenses Total

6/15/17-11/15/18 $54,794.75 $2,195.40 $56,990.15

  1. Golding & Lamothe

    Invoice Dates Fees Costs/Expenses Total

02/2019-10/2/2019 $55,252.00 $2,489.48 $57,741.48

It is anticipated additional amounts will be incurred as the SHIH/KO ACTION is not yet resolved.”

Interrogatory Nos. 27-29

Special Interrogatory No. 27 to Plaintiff Tatana and No. 30 to Plaintiff Cesar states:

Please state the net amount of attorney fees YOU paid to litigate the SHIH/KO ACTION up to and including the date YOU serve YOUR responses to these interrogatories, after deducting the total payments YOU received from FIRST AMERICAN.

Special Interrogatory No. 28 to Plaintiff Tatana and No. 31 to Plaintiff Cesar states:

Please state the amount of expenses YOU paid to litigate the SHIH/KO ACTION up to and including the date YOU serve YOUR responses to these interrogatories.

Special Interrogatory No. 29 to Plaintiff Tatana and No. 32 to Plaintiff Cesar states:

Please state the net amount of expenses YOU paid to litigate the SHIH/KO ACTION up to and including the date YOU serve YOUR responses to these interrogatories, after deducting the total payments YOU received from FIRST AMERICAN.

In response to Interrogatory No. 27, Plaintiffs assert the same objections as above and further refer Defendant to the response to Special Interrogatory No. 25. Plaintiffs additionally state that without waiving objections, “[b]ased on the current information, FIRST AMERICAN paid $54,775.80 which included fees and charges of Gaines & Stacey and for Mr. Gribin ($2,350.00) and the resulting calculation of all fees and charges should be adjusted accordingly. It is anticipated additional amounts will be incurred as the SHIH/KO ACTION is not yet resolved.”

In response to Interrogatory Nos. 28 and 29, Plaintiffs again assert their objections and further respond, stating “costs and expenses are included in the invoices from the relevant attorneys have been produced to FIRST AMERICAN. FIRST AMERICAN reimbursed $2,350 for expenses incurred from Mr. Gribin. In addition, based on current information Plaintiffs have also incurred separate expenses of $19,982.50. It is anticipated additional amounts will be incurred as the SHIH/KO ACTION is not yet resolved.”

Interrogatory Nos. 30-31

Special Interrogatory No. 30 to Plaintiff Tatana and No. 33 to Plaintiff Cesar states:

Please state the amount of attorney fees YOU paid any attorney, law firm, or other entity to litigate the ROMERO ACTION up to and including the date YOU serve YOUR responses to these interrogatories, including the name of each attorney, law firm, or other entity to whom YOU paid such fees.

Special Interrogatory No. 31 to Plaintiff Tatana and No. 34 to Plaintiff Cesar states:

Please state the amount of expenses YOU paid to litigate the ROMERO ACTION up to and including the date YOU serve YOUR responses to these interrogatories.

In response to Interrogatory No. 30, Plaintiffs assert the same objection as above and without waiving objections, Plaintiffs respond that “fees and charges are included in the invoices from the relevant attorneys which have been produced to FIRST AMERICAN. Based on current information, Plaintiffs believe they have incurred the following legal fees, costs and expenses with respect to the ROMERO ACTION:

  1. Buchalter, a Professional Corporation

Invoice Dates Fees Costs/Expenses Total

8/31/17-1/31/18 $110,7699.00 $3.1350.40 $113,884.40

  1. Reiter, Dye & Brennan, LLP

Invoice Dates Fees Costs/Expenses Total

6/30/18-10/10/19 $499,805.00 $23,306.58 $533,612.53

It is anticipated additional amounts will be incurred as the ROMERO ACTION is not yet resolved.”

In response to Interrogatory No. 31, Plaintiffs again object on the same grounds as previous interrogatories and incorporate by reference the response to Interrogatory No. 30. Plaintiffs further respond that “[c]osts and expenses are included in the invoices from the relevant attorneys which have been produced to FIRST AMERICAN. In addition, Plaintiffs have also incurred separate expenses of $37,521.79. It is anticipated additional amounts will be incurred as the ROMERO ACTION is not yet resolved.”

Defendants argue that these interrogatories are a simple inquiry into exactly how much money Plaintiffs have spent on litigation. Defendants assert that either Plaintiffs have paid a certain sum for their legal bills or they have not. Defendants contend that Plaintiffs failed to substantively answer the Special Interrogatories by either using improper objections or answer the questions as to the amount of attorney fees “incurred” but not “paid.” As to Plaintiffs’ objection based on the attorney-client privilege, Defendant argues that such an objection is not applicable. Quoting Los Angeles County Board of Supervisors v. Superior Court (ACLU of Southern California) ((2016) 2 Cal.5th 282, 295), Defendants assert that the California Supreme Court held, “Invoices for legal services are generally not communicated for the purpose of legal consultation. Rather, they are communicated for the purpose of billing the client and, to the extent they have no other purpose or effect, they fall outside the scope of an attorney's professional representation. [Citations.] While invoices may convey some very general information about the process through which a client obtains legal advice, their purpose is to ensure proper payment for services rendered, not to seek or deliver the attorney's legal advice or representation.”

In opposition, Plaintiffs argue that it is an undisputed fact that Plaintiffs have already provided the information sought by the instant motion through redacted copies of attorney invoices. Plaintiffs assert that although Defendant claims that there are only “some” payments reflected in the bills, the fact is that Plaintiffs have produced all available legal bills and all of the attorney bills reflect billed amounts and payment amounts. Plaintiffs contend that pursuant to Section 2030.230, Plaintiffs, as a matter of law, are not required to do the requested clerical work of adding up all the different amounts for different time periods in order to help Defendant prepare for trial.

Plaintiffs argue that moreover, Plaintiffs are entitled to recover “incurred” fees, costs and expenses under California law and Defendant’s own title insurance policy. Plaintiffs assert that accordingly, it is irrelevant what amounts were paid. Plaintiffs contend that Defendant’s argument that the amounts paid are a direct measure of Plaintiffs’ emotional distress is absurd and nonsensical.

In reply, Defendant argues that it is entitled to know the dollar amount Plaintiffs have actually paid to their attorneys, as opposed to the fees “incurred” which may have been unpaid or waived. Defendant asserts that despite Plaintiffs’ claims to the contrary, the documents produced to Defendant do not state the amount of attorneys’ fees paid by Plaintiffs to date. Defendant contends that by only providing answers to the amounts “incurred” and not the amounts “paid,” Plaintiffs’ answers are not complete and code-compliant. Defendant asserts that if Plaintiffs believe that the amount of attorneys’ fees paid to date once disclosed should not be admissible at trial, the appropriate means of addressing that issue is a motion in limine.

Defendant contends that despite Plaintiffs’ assertion that they produced all available legal bills that list both the amounts billed and the amounts paid, it is clear they have not as the redacted bills filed with Plaintiffs’ opposition only reflect payments of $234,507.61, a mere fraction of the $1 million plus amount Plaintiffs claim to have incurred. Defendant argues that the last legal bill included in the exhibits attached to Plaintiffs’ opposition and in the last document production received by Defendant was dated July 26, 2019. Defendant asserts that as a result, there is an utter lack of information as to what attorney fees have been paid since July 26, 2019. Defendant contends that Plaintiff’s argument regarding under Section 2030.230 must also fail as the records are not equally available to both parties.

The Court finds that good cause exists to compel further responses to the special interrogatories at issue and that Defendant is entitled to know the amount of attorney fees paid by Plaintiffs. Plaintiffs argument that they are not required to calculate the exact amounts for Defendant is unavailing, as Plaintiffs have frequently claimed legal fees in excess of $1 million yet the bills presented to the Court do not indicate that sum. Accordingly, Defendant would be unable to calculate the fees paid, as Plaintiffs have access to records that Defendant does not. Moreover, based on the bills before the Court, it is unclear that even if Plaintiffs had produced all available legal bills, Defendant would be capable of calculating how much has been paid to date.

Special Interrogatories, Set Four, Nos. 28-34 propounded on Plaintiff Cesar and Special Interrogatories, Set Three, Nos. 25-31 propounded on Plaintiff Tatana is GRANTED.

Sanctions

Pursuant to Section 2030.300(d), “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 to compel a further response to interrogatories, 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.”

Defendant seeks monetary sanctions against Plaintiffs in the amount of $2,810.00 consisting of 4 hours spent preparing the moving papers, an anticipated 3 hours reviewing the opposition and drafting a reply, and 3 hours preparing for, traveling to, and appearing at the hearing billed at a rate of $275 per hour plus the $60 filing fee.

The Court finds that Plaintiffs did not act with substantial justification in refusing to provide code-complaint answers to the special interrogatories at issue here or that other circumstances would make the imposition of the sanction unjust. Still, the Court finds that the amount of fees requested is excessive and therefore unreasonable. The Court thus awards reduced sanctions in the amount of $1,160.00 consisting of 2 hours preparing the moving papers, 1 hour preparing the reply, and 1 hour attending the hearing on the motion billed at a rate of $275, plus the $60 filing fee.

Conclusion

Defendant’s motion to compel further responses to Special Interrogatories, Set Four, Nos. 28-34 propounded on Plaintiff Cesar and Special Interrogatories, Set Three, Nos. 25-31 propounded on Plaintiff Tatana is GRANTED. Plaintiffs shall provide information of actual attorneys' fees and costs paid in each of the 2 actions and for each lawyer or law firm for two (2) time periods:  (1) All fees and costs paid up to March 23, 2017; (2) All fees and costs paid from March 24, 2017 to December 31, 2019. Plaintiffs must serve verified supplemental responses within thirty (30) days.

 

 

Case Number: BC656649    Hearing Date: December 30, 2019    Dept: 31

MOTION TO DISQUALIFY IS DENIED.

Background

Plaintiffs Cesar Romero (“Cesar”) and Tatiana Romero sued Defendants First American Title Insurance Company (hereinafter “FATIC”), First American Title Company, and Prominent Escrow Services, Inc. for compensatory and injunctive relief, based on allegations that Plaintiffs’ non-party neighbor’s home improvements encroached onto Plaintiffs’ property. Plaintiffs also claim that FATIC, which provided Plaintiffs’ title insurance, acted in bad faith by improperly favoring Plaintiffs’ neighbors, “Shih/Ko,” in the dispute over the alleged encroachment and failed to pay Plaintiffs adequate damages to compensate for the diminution in value of their property caused by the encroachment. In the operative Second Amended Complaint (“SAC”), Plaintiffs assert causes of action for:

  1. Breach of Contract by Escrow Agents and Fiduciaries for Failure to Comply with Instructions;

  2. Negligence by Escrow Agents and Fiduciaries in the Performance of Their Duties;

  3. Breach of Fiduciary Duty;

  4. Damages for Negligent Representation;

  5. Damages for Fraud;

  6. Breach of Insurance Contract;

  7. Breach of the Duty of Good Faith and Fair Dealing; and

  8. Unfair Business Practices.

    The sixth, seventh, and eighth causes of action are pending against FATIC because the Court sustained FATIC’s demurrer to the first, second, third, fourth, and fifth causes of action without leave to amend on May 9, 2018. Also as a result of sustaining the demurrer without leave to amend on May 9, 2019, Defendant First American Title Company was dismissed with prejudice, as the first through fifth causes of action were the only ones asserted against it. On January 31, 2019, Plaintiffs dismissed Defendant Prominent Escrow Services, Inc. with prejudice.

    Plaintiffs move for an order (1) disqualifying Early Sullivan Wright Gizer & McRae LLP (“Early Sullivan”) from further representing Defendant in this action; and (2) for issue sanctions.

    Legal Standard for Motion to Disqualify

    California Code of Civil Procedure section 128(a)(5) authorizes the Court to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it. This authority necessarily includes disqualifying an attorney. (People ex. rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) Cal. 4th 1135, 1145.) The issue of disqualification ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility. (Id.) However, the paramount concern must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar and the recognized and important right to counsel of one’s choosing must yield to considerations of ethics that run to the very integrity of our judicial process. (Id.)

    In ruling on a motion to disqualify, the court should weigh: (1) the party's right to counsel of choice; (2) the attorney's interest in representing a client; (3) the financial burden on a client of change of counsel; (4) any tactical abuse underlying a disqualification motion; and (5) the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel. (Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126.) Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. (Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113.) In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. (Id.)

    Legal Standard for Motion for Sanctions

    “The court may . . . impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (CCP § 2023.030(b).) “Discovery sanctions must be tailored in order to remedy the offending party's discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)

    “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (internal citation omitted).)

    A motion for issue or evidentiary sanctions must be accompanied by a separate statement. (Cal. Rules of Court, Rule 3.1345(a)(7).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.” (Cal. Rules of Court, Rule 3.1345(c).)

    Request for Judicial Notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Defendant requests that the Court take judicial notice of a number of documents filed in this case. The request is GRANTED.

Evidentiary Objections

Defendant submits a number of objections to Plaintiffs’ separate statement and the Declarations of Cesar Romero in support of Plaintiffs’ Motion and Reply.

The Court notes at the outset that Defendant has failed to consecutively number its objections as required by California Rules of Court Rule 3.1354, making it difficult for the Court to identify which objections it intends to sustain and overrule. The Court admonishes Defendants and expects the parties to fully comply with all requirements set forth in the Rules of Court and Code of Civil Procedure.

Objection to Plaintiffs’ separate statement – OVERRULED.

Objections to the Declaration of Cesar Romero in support of Plaintiff’s Motion

¶ 2 – OVERRULED

¶ 4-7, ¶ 9-10 – SUSTAINED

The remaining objections are immaterial to the disposition of the Court. Accordingly, the Court declines to rule upon them.

Objections to the Declaration of Cesar Romero in support of Plaintiff’s Reply

¶ 8 – SUSTAINED

The remaining objections are immaterial to the disposition of the Court. Accordingly, the Court declines to rule upon them.

Discussion

Plaintiffs move for an order (1) disqualifying Early Sullivan Wright Gizer & McRae LLP (“Early Sullivan”) from further representing Defendant in this action; and (2) for issue sanctions. Plaintiffs seeks issue sanctions, finding that Defendant engaged in bad faith by: (a) favoring Shih/Ko over Plaintiffs; (b) disseminating Plaintiff’s confidential and privileged documents to Shih/Ko so that it can be used against Plaintiffs in the related encroachment case; (c) hiding from this Court the confidentiality agreement with Plaintiffs that prevented Defendant from disclosing confidential and privileged information to the Shih/Ko parties in the encroachment case; (d) filing false statements with this Court in order to aid Shih/Ko in the encroachment case; (e) by failing to inform Plaintiffs that they were Defendant’s insured and that their policy would cover the Shih/Ko encroachment; and/or (f) any other acts the Court deems appropriate.

Plaintiffs argue that they have had a confidentiality agreement in place with Defendant since July 7, 2017. (Romero Decl., Exh. 1.) Plaintiffs assert that Defendant breached this agreement by intentionally disseminating the privileged and confidential information in the public domain without Plaintiffs’ authorization in order to aid Plaintiffs’ adversaries in the related encroachment case. Plaintiffs contend that Defendant, through its attorneys, has coordinated efforts with Janet Humphrey from Songstad Randall Coffee & Humphrey LLP (hereinafter “Humphrey”), attorneys of Shih/Ko in the related case, so that all of the intentionally published privileged and confidential information and deposition transcripts are used by Humphrey against the Plaintiffs in the related case.

Plaintiffs argue that Defendant, through its counsel, intentionally chose to disseminate privileged and confidential information without Plaintiffs’ permission and disguised that dissemination as discovery motions and other motions. Plaintiffs assert that the dissemination was done in bad faith and in order to publish the privileged information in the public domain so that Humphrey could use it in the underlying case to her advantage. Plaintiffs contend that the dissemination includes the filing of (1) the Brenda Wendt appraisal and related communications; (2) Lisa Weinberg-FATIC communications and documents; (3) unredacted Weinberg bills; and (4) information and documents related to David Gribin.

Plaintiffs argue that the referenced documents were attached as support for (1) Defendant’s Motion for Summary Adjudication; (2) Defendant’s Ex-Parte Application for an Order Specially Setting its Motion to Compel Plaintiffs’ Further Supplemental Responses; (3) Defendant’s Motion to Compel Plaintiffs’ Further Supplemental Responses to Request for Production of Documents, Set Two; (4) Defendant’s Opposition to Plaintiffs’ Motion to Quash Deposition Subpoena of David Gribin; and (5) Defendant’s Motion to Compel Plaintiffs’ Further Responses to Special Interrogatories, Set Three. Plaintiffs assert that Defendant engaged in reprehensible, bad faith conduct by continuing to aid and collude with Plaintiffs’ adversaries in the underlying action in order to gang up on and defeat Plaintiffs in both actions.

In opposition, Defendant first argues that Plaintiffs’ motion is procedurally and substantively defective, as it purports to be based on Section 2023.010 of the Civil Discovery Act, but does not actually identify any misuses of the discovery process and seems to have been brought in this fashion solely to allow for the filing of a separate statement. Defendant asserts that rather than containing the text of the requests and responses as issue, the separate statement is full of extensive legal and factual argument. Defendant contends that this is manifestly improper and an unfair attempt to get around the 15-page limit. Defendant contends that while the motion also purports to be based on Section 128.5 of the Code of Civil Procedure, the instant motion cannot be both a discovery motion and a sanctions motion, as that Section expressly provides that it “shall not apply to disclosures and discovery requests, responses, objections, and motions” and motions made under it “shall be made separate from other motions or requests.” (CCP § 128.5(e), (f)(1)(A).) Defendant additionally argues that the motion is so disorganized as to preclude a fair response.

On the merits, Defendant asserts that an insurer has the right to defend against a lawsuit brought against it by its insured. Defendant contends that moreover, Plaintiffs do not identify any actual violation of the purported “confidentiality agreement” they describe, only public filings. Defendant argues that there is no dispute that there has never been a general protective order governing the dissemination and use of confidential documents in this litigation. (Gidding Decl. ¶ 2.) Defendant contends that the purported “confidentiality agreement” that serves as the basis of Plaintiffs’ motion is an email sent three months after Plaintiffs filed this lawsuit. Defendant argues that there is no evidence that either Plaintiff ever responded to this email and it is preposterous to suggest that pursuant to this email, a “confidentiality agreement” was reached. Defendant asserts that beyond this fatal problem, there is no evidence that any documents were transmitted pursuant to this email.

Defendant contends that there is no evidence that this purported agreement was breached, let alone breached by Defendant and/or its counsel. Defendant argues that Plaintiffs do not identify any confidential information they provided to Ms. Hilburg, Defendant’s coverage counsel, which was improperly disclosed. Defendant asserts that instead, Plaintiffs identify a number of public filings that Defendant’s counsel, Early Sullivan, made in this litigation. Defendant contends that even now, as they are seeking to disqualify Defendant’s counsel and obtain essentially dispositive evidentiary sanctions against it, Plaintiffs have made no effort to seal or redact the public filings of which they complain. Defendant argues that this demonstrates that this purported dispute over “confidential” information is not about safeguarding any information, but is simply an eleventh-hour distraction intended to harass Defendant and its counsel.

Defendant asserts that there is nothing improper about what Defendant’s counsel has done, neither in appearance nor in fact. Defendant contends that although Plaintiffs accuse Defendant’s counsel of unethical conduct, they do not identify any pertinent ethical rule which counsel has violated. Defendant argues that Early Sullivan has never represented Plaintiffs and has no ethical obligation to them beyond those extended to all opposing parties under the Rules of Professional Conduct. (Gidding Decl. ¶ 3.) Defendant asserts that the idea that Early Sullivan should be disqualified for engaging in conduct, i.e., litigation, which is “prejudicial” to Plaintiffs is absurd.

Defendant finally contends that to the extent that any of the information Defendant filed was privileged, any applicable privilege was waived both because Plaintiffs themselves put the communications in issue and further because Plaintiffs failed to object to the filings. Defendant argues additionally that, Janet Humphrey is independent counsel and Defendant does not control her or how she chooses to represent her client. Defendant asserts that Humphrey’s use of information filed by Defendant is the foreseeable result of Plaintiffs’ failure to assert any kind of privilege or confidentiality objection until very late in this litigation. Defendant contends that if Plaintiffs were concerned that discovery in this action might be used in the related encroachment action, Plaintiffs could have sought a confidentiality order or sought to seal the filings at the time. Defendant argues that Plaintiffs did neither and now seek to pin their woes on Defendant. Defendant asserts that the Court should note that Plaintiffs’ claims of collusion between Early Sullivan and Humphrey are a recent invention.

In reply, Plaintiffs argue that as to Defendant’s argument that Plaintiffs rely on Section 128.5, Plaintiffs never cite to that provision, but instead cite to Section 128(a)(5). As to Defendant’s arguments regarding waiver of the confidential or privileged nature of the documents, Plaintiffs argue that under the confidentiality agreement, Defendant had a duty not to disclose Plaintiffs’ confidential/privileged information to Plaintiffs’ adversaries. Plaintiffs assert that it was because of Defendant’s breach of the confidentiality agreement that the documents actually became unprivileged.

The Court finds that Plaintiffs have failed to provide sufficient evidence that Defendant, through its counsel, intentionally disseminated privileged and confidential information for the purpose of aiding Plaintiffs’ adversaries in the related case such that disqualification is warranted. Plaintiffs’ argument is based purely on conjecture and speculation, which does not amount to evidence sufficient to warrant disqualification. As the Court has previously ruled, Plaintiffs’ arguments regarding privileged and confidential information are unpersuasive, as it has long been settled that any privilege with regards to information that is now purportedly in the hands of Plaintiffs’ adversaries in the related case was not waived by Defendant through its court filings, but waived by Plaintiffs themselves through their various actions throughout this litigation.

Moreover, the confidentiality agreement that Plaintiffs rely on was entered into by Lorie Hilburg, Defendant’s coverage attorney at the time Plaintiffs filed suit against Defendant, not Defendant’s current counsel in this action. Accordingly, no purported confidentiality agreement was entered into by and between the parties here. Additionally, Plaintiffs fail to present evidence that any information was given to Hilburg pursuant to that agreement, much less that any information given pursuant to that agreement was intentionally disseminated by Defendant’s counsel.

Plaintiffs devote a great deal of their moving and reply papers arguing that Defendant’s actions, through their counsel, violate the duty of good faith and fair dealing, a central issue in the current action. Such an argument is misplaced at this time, as Plaintiffs essentially seek sanctions and disqualification of counsel based on the merit of allegations in the complaint. Plaintiffs arguments are more properly suited for trial, where Plaintiffs may argue the merits of this action.

Given the Court’s ruling finding that Plaintiffs’ failed to present evidence sufficient to warrant disqualification, the Court additionally finds that Plaintiffs have failed to provide sufficient evidence that Defendant engaged in a willful abuse of the discovery process or that there is a history of continued discovery abuse such that issue sanctions are warranted here. As noted by Defendant, Defendant is entitled to defend itself against the lawsuit brought by Plaintiffs. Nothing before the Court indicates that Defendant has engaged in an abuse of the discovery process by filing documents necessary to support its defense.

Based on the foregoing, Plaintiffs’ motion to disqualify and for issue sanctions is DENIED in its entirety.

Defendant’s Request for Monetary Sanctions

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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 § 2023.030(a).)

In its opposition, Defendant requests monetary sanctions against Plaintiffs for the costs incurred in opposing Plaintiffs’ motion. Defendant seeks sanctions in the amount of $4,125.00 for 10 hours spent preparing the opposing papers, an anticipated 2 hours reviewing the Reply, and an anticipated 3 hours spent preparing for and traveling to the hearing of the motion billed at a rate of $275 per hour. The Court finds that the amount of sanctions requested is excessive. The Court thus awards reduced sanctions in the amount of $2,200.00 for 5 hours spent preparing the opposing papers, 2 hours spent reviewing the Reply, and 1 hour spent attending the hearing.

Conclusion

Plaintiffs’ motion to disqualify and for issue sanctions is DENIED in its entirety. Defendant’s request for monetary sanctions is GRANTED. Plaintiffs are ordered to pay sanctions in the amount of $2,200.00 to Defendant within thirty (30) days of this order.

Moving party to give notice.

Case Number: ¿BC656649    Hearing Date: December 04, 2019    Dept: 31

MOTION TO DISQUALIFY IS CONTINUED TO DECEMBER 13, 2019.

Plaintiffs’ motion to disqualify is CONTINUED to December 13, 2019. Per Plaintiff’s Reply, Plaintiffs were not timely served with the Opposition, depriving them of the opportunity to draft a Reply on the merits. Plaintiffs may file a Reply on the merits pursuant to Code of Civil Procedure section 1005(b). No Sur-Reply will be permitted.

Plaintiffs Cesar Romero (“Cesar”) and Tatiana Romero sued Defendants First American Title Insurance Company (hereinafter “FATIC”), First American Title Company, and Prominent Escrow Services, Inc. for compensatory and injunctive relief, based on allegations that Plaintiffs’ non-party neighbor’s home improvements encroached onto Plaintiffs’ property. Plaintiffs also claim that FATIC, which provided Plaintiffs’ title insurance, acted in bad faith by improperly favoring Plaintiffs’ neighbors, “Shih/Ko,” in the dispute over the alleged encroachment and failed to pay Plaintiffs adequate damages to compensate for the diminution in value of their property caused by the encroachment. In the operative Second Amended Complaint (“SAC”), Plaintiffs assert causes of action for:

  1. Breach of Contract by Escrow Agents and Fiduciaries for Failure to Comply with Instructions;

  2. Negligence by Escrow Agents and Fiduciaries in the Performance of Their Duties;

  3. Breach of Fiduciary Duty;

  4. Damages for Negligent Representation;

  5. Damages for Fraud;

  6. Breach of Insurance Contract;

  7. Breach of the Duty of Good Faith and Fair Dealing; and

  8. Unfair Business Practices. 

The sixth, seventh, and eighth causes of action are pending against FATIC because the Court sustained FATIC’s demurrer to the first, second, third, fourth, and fifth causes of action without leave to amend on May 9, 2018. Also as a result of sustaining the demurrer without leave to amend on May 9, 2019, Defendant First American Title Company was dismissed with prejudice, as the first through fifth causes of action were the only ones asserted against it. On January 31, 2019, Plaintiffs dismissed Defendant Prominent Escrow Services, Inc. with prejudice.

On January 7, 2019, the Court denied Defendant’s motion to compel further responses to Request for Production of Documents, Set Two, Nos. 29 and 30, which sought information regarding appraisals prepared by David Gribin. The Court found that the appraisals were protected by the attorney-client privilege and work product doctrine. 

On September 16, 2019, the Court of Appeal issued a Temporary Stay Order, staying the enforcement of this Court’s September 3, 2019 Order, denying Plaintiff’s motion for protective order. The protective order sought an order instructing the deposition officer not to provide a copy of the deposition transcript, or audio or video recording, of the Deposition of Brenda Anne Wendt taken in this case on or about December 17, 2018 to the law firm of Stongstad Randall Coffee Humphrey LLP. 

On September 19, 2019, this Court continued Plaintiffs’ Motion for Protective Order pertaining to the Deposition of Lisa Weinberg “to enable the Court of Appeal to render a decision on Plaintiff’s writ of mandate taken on [the September 3, 2019] Order of the Court.”

Plaintiffs moves for an order directing Janet E. Humphrey of Songstad Randall Coffee Humphrey LLP (hereinafter “Humphrey”) to show cause why she should not be held in contempt of this Court.

Legal Standard

A contempt proceeding is commenced by the filing of an affidavit and a request for an order to show cause. (§ 1211, subds. (a), (b).) After notice to the opposing party's lawyer, the court (if satisfied with the sufficiency of the affidavit) must sign an order to show cause re contempt in which the date and time for a hearing are set forth. (§ 1212; Arthur v. Superior Court (1965) 62 Cal.2d 404, 408 [42 Cal.Rptr. 441, 398 P.2d 777] [“an order to show cause must be issued”]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1999) ¶ 9:715, p. 9(II)-47.) The order to show cause acts as a summons to appear in court on a certain day and, as its name suggests, to show cause why a certain thing should not be done. (Morelli v. Superior Court (1968) 262 Cal.App.2d 262, 269 [68 Cal.Rptr. 572].) Unless the citee has concealed himself from the court, he must be personally served with the affidavit and the order to show cause; otherwise, the court lacks jurisdiction to proceed.

(Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1286–87.)

Pursuant to Code of Civil Procedure section 1209(a)(5), a party may be held in contempt for “[d]isobedience of any lawful judgment, order, or process of the court.” “When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt.” (Code of Civ. Proc., § 1211(a).) To support an order to show cause re an indirect contempt (occurring outside the immediate presence of the court), a declaration must evidence, as jurisdictional requirements “(1) the making of the order, (2) knowledge of the order, (3) ability of the accused to render compliance, and (4) willful disobedience of the order.” (Application of Ny (1962) 201 Cal.App.2d 728, 731; accord Board of Supervisors v. Sup. Ct. (1995) 33 Cal.App.4th 1724, 1736.)

Request for Judicial Notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.” (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.) However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).)

Humphrey requests that the Court take judicial notice of a number of documents that have been filed in the Los Angeles Superior Court. The request is GRANTED.

Evidentiary Objections

Humphrey submits a number of objections to the Declaration of Cesar Romero. The Court rules upon them as follows:

Objection nos. 1-5 – SUSTAINED

Objection nos. 6-7 – OVERRULED

Objections as to Exhibits 1, 10-15, 17-20, 22-27 – SUSTAINED

Objections as to Exhibits 2, 6-8 – OVERRULED

Discussion

Plaintiffs move for an order directing Humphrey to show cause why she should not be held in contempt of this Court for violating this Court’s orders issued on January 7, 2019 and September 19, 2019.

In opposition, Humphrey argues that her conduct in representing her clients by conducting discovery and filing pleadings with the court in the Related Action is protected by the litigation privilege, which protects statements made in the course of judicial proceedings. (Civil Code § 47(b)(2).) Humphrey asserts all statements, even defamatory statements made by an attorney during a judicial proceeding in which he participates as counsel are privileged if they have some relation to the proceedings. (Friedman v. Knecht (1967) 248 Cal.App.2d 455, 460; see also Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489.) Humphrey contends that her litigation activities in the Related Action in pursuit of her clients’ defenses to the claims brought by the Romeros and in furtherance of the claims asserted by the Shih/Kos are all protected by the litigation privilege. Humphrey argues that the discovery demands and pleadings referenced in the Romeros’ motion are therefore privileged and are not a proper basis for this motion.

January 7, 2019 Order

The Court’s January 7, 2019 Order denied Defendant’s motion to compel further responses to Request for Production of Documents, Set Two, Nos. 29 and 30, which sought information regarding appraisals prepared by David Gribin. The Court found that the appraisals were protected by the attorney-client privilege and work product doctrine.

Plaintiffs argue that Humphrey violated this Court’s Order that David Gribin’s appraisals were privileged by stating in the Related Action that this Court’s Order is disingenuous and Gribin’s appraisals are not privileged. (Romero Decl., Exh. 1.) Plaintiffs assert that Humphrey further violated the January 7, 2019 Order by filing a motion to add Gribin as her expert and by serving numerous discovery requests demanding information and documents relating to Gribin. (Romero Decl., Exh. 2-5, 29.) Plaintiffs contend that not only did Humphrey violate this Court’s January 7, 2019 Order, Humphrey also made a multitude of fabricated and false statements to the Court in the Related Action relating to Gribin, such as her false statement that there is an existing deposition transcript of Gribin testimony in this case, that there is an existing Gribin appraisal report that was attached to Wendt’s transcript, or that Wendt was given a copy of Gribin’s appraisal and viewed the report. (Romero Decl. ¶ 20-21.) Plaintiffs argue that these statements were not an innocent mistake or oversight, but a calculated fabrication and misrepresentation of facts in order to convince the Court in the Related Action that Gribin’s appraisals are not privileged while concealing the existence of this Court’s January 7, 2019 Order.

In opposition, Humphrey argues that Humphrey was not a party to, was never served with or otherwise bound by the January 7, 2019 Order. Humphrey asserts that additionally, the January 7, 2019 Order does not prohibit Humphrey’s litigation conduct in the Related Action in any respect or purport to make any orders with respect to privilege in the Related Action. Humphrey contends that rather, FATIC was denied the ability to compel written discovery to enforce its subpoena against Gribin, although pursuant to the July 26, 2019 Order, FATIC was permitted to conduct written discovery confirming the amounts of Gribin’s valuation opinions. Humphrey argues that even if she was bound by the January 7, 2019 Order, it has not been violated by Humphrey.

Humphrey asserts that the Romeros’ contention that Humphrey falsely told the Court in the Related Action that the Gribin valuation is not privileged is inaccurate. Humphrey contends that she made good faith motions in the Related Action arguing that privilege with respect to Gribin had been waived, relying on evidence that the Gribin appraisal valuation was provided to Wendy and was filed in the public record. Humphrey argues that she is privileged to argue on behalf of her clients in the Related Action that under these circumstances, the Gribin valuation is not privileged. Humphrey asserts that Judge Kin in the Related Action is permitted to issue his own orders with respect to privilege.

As to the Romeros’ argument that Humphrey violated the January 7, 2019 Order by filing her motion to augment her clients’ expert designation in Related Action to add Gribin as a non-retained expert, Humphrey contends that such a contention is frivolous. Humphrey argues that she was not prohibited by the January 7, 2019 Order to file the Motion to Augment to add Gribin as a non-retained expert. Humphrey contends that she set forth all of the evidence in the public record supporting her clients' argument that the privilege has been waived. Humphrey argues that the Romeros’ counsel defended the Motion, making arguments and also attaching a copy of this Court's January 7, 2019 Order. Humphrey asserts that Judge Kin granted the Motion to Augment noting the “ample information concerning these experts and their valuations were publicly available.”

The Court finds that Humphrey did not violate this Court’s January 7, 2019 Order by arguing in the Related Action that Gribin’s appraisals were not privileged nor by designating Gribin as an expert. This Court’s January 7, 2019 Order found that under the circumstances at the time the Order was issued, Gribin’s appraisals were privileged. The Order did not hold that Gribin’s appraisals would forever be privileged or that the privilege could not later be waived. Moreover, the Court’s January 7, 2019 Order bound only the parties to this litigation. The Order did not bind the Court in the Related Action nor did it bind Humphrey. 

Based on the foregoing, a violation of the January 7, 2019 Order cannot serve as a basis for the instant motion.

September 19, 2019 Order

On September 19, 2019, the Court continued Plaintiffs’ Motion for Protective Order pertaining to the Deposition of Lisa Weinberg “to enable the Court of Appeal to render a decision on Plaintiff’s writ of mandate taken on an earlier Order of the Court” wherein the Court denied Plaintiffs’ motion for protective order. The protective order sought an order instructing the deposition officer not to provide a copy of the deposition transcript, or audio or video recording, of the Deposition of Brenda Anne Wendt taken in this case on or about December 17, 2018 to the law firm of Stongstad Randall Coffee Humphrey LLP.

Plaintiffs argue that Humphrey violated this Court’s September 19, 2019 order staying the enforcement of the September 3, 2019 Order by reviewing the transcript and by not returning it promptly to the sender pursuant to California Rules of Professional Conduct 4.4. Rule 4.4 provides: 

Where it is reasonably apparent to a lawyer who receives a writing relating to a lawyer’s representation of a client that the writing was inadvertently sent or produced, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer shall:

(a) refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine, and

(b) promptly notify the sender.

Plaintiffs argue that Humphrey was notified of the pending Writ of Mandate and the Stay Orders on at least two separate occasions – the first time on September 6, 2019 and the second time on September 24, 2019. (Romero Decl., Exh. 9.) Plaintiffs assert that Humphrey was further advised by Plaintiffs’ counsel that if she is in possession of the transcript, it was her obligation to refrain from examining the transcript and return the transcript until a final decision is made by the Courts. (Romero Decl., Exh. 9.)

Plaintiffs contend that Humphrey violated Rule 4.4 by reviewing the deposition transcript and by not returning it promptly to the sender. Plaintiffs argue that Humphrey willfully violated this Court’s and the Appellate Court’s stay order on September 30, 2019 by filing a motion to add Wendt, Gribin, and Hackett as experts in the Related Action. (Romero Decl., Exh. 2.) Plaintiffs assert that in her motion, Humphrey quoted large portions from the Wendt transcript and actually attached the entire deposition transcript as well as the deposition exhibits as her supporting evidence.

In opposition, Humphrey argues that as to the Court of Appeals Stay Order, this Court cannot issue an OSC re Contempt for a Court of Appeals Order because only the Court of Appeals can determine whether its orders have been violated. As to this Court’s September 19, 2019 Order, Humphrey contends that Order simply stayed the enforcement of this Court’s September 3, 2019 Order denying a protective order for the Wendt Transcript. Humphrey argues that the September 19, 2019 Order was issued long after the Wendt transcript had already been released by Veritext, reviewed by Songstad Randall Coffee Humphrey LLP, and portions were filed with this Court in opposition to the Weinberg Protective Order Motion. Humphrey asserts that moreover, Humphrey did not file the Wendt transcript in connection with the Motion to Augment, but rather filed a copy of the Boswell Declaration that included portions of the Wendt Transcript that has been in the public record since May 10, 2019.

Humphrey contends that additionally, there has not been a violation of Rules of Professional Conduct Rule 4.4 as the Wendt transcript is not privileged, as confirmed by the September 3, 2019 Order and where there has never been an inadvertent disclosure. Humphrey argues that there was no obligation to refrain from reading the Wendt transcript that had already been produced to Songstad Randall Coffee Humphrey LLP by Veritext pursuant to this Court’s September 3, 2019 Order, before the Court of Appeals issued its September 16, 2019 Stay Order. Humphrey asserts that, for this reason, there has never been a violation of the September 19, 2019 Order and the Writ of Mandate has now been denied and the stay lifted.

The Court finds that Humphrey did not violate this Court’s September 19, 2019 Order. The Order did not stay the proceedings in this case nor did it make any order concerning the Related Action, as such an order would be outside the bounds of the Court’s jurisdiction. Despite Plaintiffs’ contention otherwise, Humphrey was not mandated by Rule 4.4 to return the deposition transcript to Veritext. Rule 4.4 relates to inadvertent disclosures and refers to when a “lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine.” Given this Court’s ruling on September 3, 2019, it cannot be argued that Humphrey knew or reasonably should have known that the writing was privileged or subject to the work product doctrine. Accordingly, Rule 4.4 simply has no applicability here.

Based on the foregoing, a violation of the September 19, 2019 Order cannot serve as a basis for the instant motion.

Conclusion

Plaintiffs’ motion for an OSC re: contempt is DENIED.

Moving party to give notice.

Case Number: BC656649    Hearing Date: November 07, 2019    Dept: 31

MOTIONS FOR PROTECTIVE ORDER ARE DENIED.

Background

Plaintiffs Cesar Romero (“Cesar”) and Tatiana Romero sued Defendants First American Title Insurance Company (hereinafter “FATIC”), First American Title Company, and Prominent Escrow Services, Inc. for compensatory and injunctive relief, based on allegations that Plaintiffs’ non-party neighbor’s home improvements encroached onto Plaintiffs’ property. Plaintiffs also claim that FATIC, which provided Plaintiffs’ title insurance, acted in bad faith by improperly favoring Plaintiffs’ neighbors, “Shih/Ko,” in the dispute over the alleged encroachment and failed to pay Plaintiffs adequate damages to compensate for the diminution in value of their property caused by the encroachment. In the operative Second Amended Complaint (“SAC”), Plaintiffs assert causes of action for:

  1. Breach of Contract by Escrow Agents and Fiduciaries for Failure to Comply with Instructions;

  2. Negligence by Escrow Agents and Fiduciaries in the Performance of Their Duties;

  3. Breach of Fiduciary Duty;

  4. Damages for Negligent Representation;

  5. Damages for Fraud;

  6. Breach of Insurance Contract;

  7. Breach of the Duty of Good Faith and Fair Dealing; and

  8. Unfair Business Practices. 

The sixth, seventh, and eighth causes of action are pending against FATIC because the Court sustained FATIC’s demurrer to the first, second, third, fourth, and fifth causes of action without leave to amend on May 9, 2018. Also as a result of sustaining the demurrer without leave to amend on May 9, 2019, Defendant First American Title Company was dismissed with prejudice, as the first through fifth causes of action were the only ones asserted against it. On January 31, 2019, Plaintiffs dismissed Defendant Prominent Escrow Services, Inc. with prejudice.

The instant motions for protective order seek (1) a protective order to prevent disclosure of the Deposition Transcript of Lisa Weinberg (“Weinberg Protective Order”) and (2) a protective order effectively preventing the Shih/Ko’s and their counsel, Songstad Randall Coffee & Humphrey (hereinafter “Songstad”), from using any discovery provided or obtained in the instant action (“Shih/Ko Protective Order”).

Legal Standard

“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).) Courts have considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

Request for Judicial Notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Weinberg Protective Order

Songstad requests that the Court take judicial notice of a number of documents filed in this action. The request is GRANTED.

Shih/Ko Protective Order

Plaintiffs request that the Court take judicial notice of a number of documents filed in this action and in LASC Case No. EC064933, Romero v. Shih, et al. The request is GRANTED.

Songstad also requests that the Court take judicial notice of various documents filed in this action and the Order of the Court of Appeal denying Plaintiff’s Petition for Writ of Mandate. The request is GRANTED.

Evidentiary Objections

Shih/Ko Protective Order

Songstad submits a number of objections to the Declarations of Paul T. Dye and Cesar Romero. The Court finds that the objections are immaterial to the Court’s disposition. Accordingly, the Court declines to rule upon them.

Discussion

Weinberg Protective Order

In a motion nearly identical to the one submitted to and ruled upon by the Court on September 3, 2019, Plaintiffs now seek a protective order instructing the deposition officer, Veritext Legal Solutions, not to provide a copy of the deposition transcript, or audio or video recording, of the Deposition of Lisa Weinberg, Plaintiffs’ former counsel, taken in this case on or about December 20, 2018, to Li-Chuan Shih or Tun-Jen Ko or the firm of Songstad Randall Coffee Humphrey LLP.

Plaintiffs argue that the Lisa Weinberg deposition is the second deposition involving privileged matter that Shih/Ko have sought in this case. Plaintiffs assert that it now appears that FATIC has joined forces with Shih/Ko to defeat the claims against them by the Romeros. Plaintiffs contend that such an alliance has been condemned by the courts of this state and the Romeros should be granted a protective order to stop this improper “ganging up” on Plaintiffs. (Haskel, Inc. v. Superior Court (1995) 33 Cal.App.4th 963, 978-980.)

Plaintiffs argue that “good cause” is demonstrated in three independent ways: (1) case law is clear that an insurer, here FATIC and a defendant in an underlying action, Shih/Ko, should not be permitted to gang up on the insured; (2) depositions of opposing counsel are presumptively improper, severely restricted, and require “extremely” good cause which has not been shown here; and (3) the information sought is protected by the attorney-client privilege and attorney work product doctrine and there is no waiver.

Insurer/Insured Considerations & Opposing Counsel Depositions

As to the first ground, Plaintiffs assert that FATIC took Weinberg’s deposition as part of the discovery for its claim that it adequately compensated that Romeros and thereby ended its duty of defense. Plaintiffs contend that the thrust of FATIC’s discovery directly conflicts with the Romero’s goals in the Shih/Ko case, and give aid and comfort to Shih/Ko. Plaintiffs argue that FATIC and Shih/Ko share the same goal – to minimize the amount, while the Romeros are seeking the highest possible damages for the encroachment. Plaintiffs assert that this ganging up by the insurer with the opposition in the underlying suit is not permitted, as California law prohibits an insurer favoring one insured over another. (Schwartz v. State Farm Fire & Cas. Co. (2001) 88 Cal.App.4th 1329, 1337-1339.)

Plaintiffs contend that the best way to combat any issues that arise as a result of an insurer attempting to use the bad faith case to litigate matters properly addressed in the underlying action would have been to stay discovery in this case until the Shih/Ko case is concluded. Plaintiffs argue that the requested relief is the best available under the circumstances. Plaintiffs contend that they suffer prejudice by giving Shih/Ko access to FATIC’s discovery which by its nature seeks to undermine the Romero’s position in both cases. Plaintiffs argue that they also suffer prejudice because they have been stuck in a two front war, expending precious resources fighting over loss questions, and this effectively undercuts one of the primary reasons for purchasing the insurance. Plaintiffs assert that this is “good cause” to grant a protective order preventing Shih/Ko from getting access to the Weinberg deposition.

As to the second ground, Plaintiffs contend that California law is clear: “Depositions of opposing counsel are presumptively improper, severely restricted, and require ‘extremely’ good cause – a high standard.” (Carehouse Convalescent Hosp. v. Superior Court (2006) 143 Cal.App.4th 1558, 1562.) Plaintiffs argue that although Weinberg’s deposition has been taken in this case, it is clear that it would not be allowed in the Shih/Ko case. Plaintiffs assert that Shih/Ko should not be permitted to get the deposition via this backdoor route. Plaintiffs contend that the strong policy considerations against deposing an opposing counsel apply here.

In opposition, Songstad argues that the evidence provided by the Weinberg deposition is obviously relevant to the issues in the related Shih/Ko action (“Related Action”), as one of the main issues in the Related Action is the value of the alleged encroachments and therefore any appraisals and any testimony, expert or otherwise, regarding appraisals are highly relevant. Songstad asserts that moreover, Plaintiffs argue without any evidence that FATIC and Songstad are somehow “ganging up” on the Romeros. Songstad contends that the Romeros’ argument is pure speculation and ignores the fact that they, themselves, have failed to object to portions of the Weinberg deposition being made part of the public record, having been filed in connection with the Motions to Compel.

As to Plaintiffs’ argument regarding opposing counsel depositions, Songstad argues that they are not attempting to take an adversary’s deposition; the Weinberg deposition has already been taken. Songstad asserts that instead, the relevant issue is whether the Romeros took any steps to ensure that the transcript would be confidential and not disclosed in the Related Action. Songstad contends that the Romeros did nothing to maintain confidentiality of the Weinberg deposition testimony and, therefore, there has been a waiver.

In reply, Plaintiffs argue that Songstad admits that it is unable to rebut the Romeros’ showing of “good cause,” instead alleging “waiver” as a sufficient basis for denying a protective order. Plaintiffs assert that this misstates the proper procedure for considering a protective order against third party disclosure under Code of Civil Procedure section 2025.420. Plaintiffs contend that waiver does not prevent issuance of a protective order, citing to Stadish v. Superior Court ((1999) 71 Cal.App.4th 1130, 1143-1144). Plaintiffs argue that the Court “must . . . balance the interests of the public, the petitioners, and the [party who produced the discovery], and reach a decision as to whether dissemination of the documents should be restricted. (Id. at 1146.) Plaintiffs assert that in so doing, the trial court needs to consider “the purpose of the information sought, the effect that disclosure will have on the parties and on the trial, the nature of the objections urged by the party resisting disclosure, and ability of the court to make an alternative order which may grant partial disclosure, disclosure in another form, or disclosure only in the event that the party seeking the information undertakes certain specified burdens which appear just under the circumstances.” (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658.)

The Court finds that Plaintiffs have failed to establish good cause for the requested protective order based on insurer/insured considerations and their arguments regarding opposing counsel depositions. As noted by Songstad, the Shih/Kos are not attempting to depose Weinberg, but are instead seeking the transcript of a deposition that has already occurred. Additionally, there is no evidence that establishes that FATIC and Songstad are “ganging up” on Plaintiffs or that FATIC is attempting to use this action to litigate matters properly addressed in the Related Case. Moreover, Songstad has sufficiently demonstrated that the Weinberg deposition is relevant to the Related Action. Given the relevancy of the information sought, the issue of whether there is good cause for a protective order thus turns on whether the information sought is confidential or privileged, and whether such protections have been waived.

Attorney Client Privilege, Work-Product Doctrine, and Waiver

The issues of attorney-client privilege, work-product doctrine protections, and waiver regarding Weinberg and the Wendt appraisal have been addressed at length in this Court’s September 3, 2019 order.

The Court finds the communications amongst Wendt, Plaintiffs, and Plaintiffs’ counsel [Weinberg] and the Wendt appraisal itself are protected by the attorney-client privilege and work-product doctrine. Wendt was a business associate who was hired by Plaintiffs’ former counsel [Weinberg] to conduct an appraisal in the Shih/Ko case. It is undisputed that Wendt was hired to further the interest of Plaintiffs. Thus, any communications between Wendt on the one hand, and Plaintiffs or their counsel [Weinberg] on the other is privileged under the attorney-client privilege. The appraisal itself is also protected by the work product doctrine, as it is undisputed that appraisals developed as a result of the initiative of counsel in preparing for trial is protected work product. . . .

. . . . . . . . . .

The Court finds that the attorney-client privilege and work-product protections concerning the Wendt appraisal have been waived and that the Wendt deposition is thus discoverable. Based on the evidence before it, the Court finds that Weinberg acted as if she was Cumis counsel without any objection by FATIC, indeed with FATIC’s tacit approval, from November 2016 to February 2017. At the time Weinberg contacted FATIC on behalf of the Romeros to submit a claim requesting coverage based on the defense of the Cross-Complaint, there existed a clear conflict of interest subject to the provisions of Section 2860: FATIC insured both the Romeros and Shih/Ko who had competing claims against each other. Thus, FATIC’s “competing interests create[d] an ethical conflict for counsel.” (Centex Homes, supra, 237 Cal.App.4th at 30.) As our Supreme Court has held, an “insurance company [can]not control the defenses of the two policyholders, and the [policyholder] who retain[s] his own counsel [i]s entitled to reimbursement of his costs of suit and attorneys’ fees. [Citation.] The conflict [i]s clear.” (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2018) 19 Cal.App.5th 789, 803 (citing O’Morrow v. Borad (1946) 27 Cal.2d 794, 799-800).)

Because a conflict of interest existed at the time Plaintiffs requested coverage of the defense of the Shih/Ko Cross-Complaint, Plaintiffs were entitled to independent or Cumis counsel “of [their] choosing ‘who represents the insured, not the insurer.’” (Centex Homes, supra, 237 Cal.App.4th at 30.) FATIC agreed to defend Plaintiffs until an appraisal of the purported encroachment was completed. (Dye Decl., Exh. C.) Whether or not the term “Cumis counsel” was ever uttered, Weinberg acted as Cumis counsel from November 2016 until February 2017. However, in February 2017, FATIC paid Plaintiffs $95,000.00 as the value of the encroachment on their land and told them that it would stop defending Plaintiffs on the cross-complaint in the lawsuit against Shih/Ko and it did. (Romero Decl. ¶ 7.) At that time – February 2017 – Weinberg ceased to be Cumis counsel. Thus, any communications made to FATIC after February 2017 would not have been pursuant to or covered by Section 2860, as Weinberg was simply no longer independent or Cumis counsel. Further, any communications made to FATIC after February 2017 would also not be protected under the independent basis in Soltani-Rastegar because the communications would not have “been intended for the information or assistance of an attorney” hired by FATIC to defend them. Any communications regarding the Wendt appraisal after February 2017 to FATIC would thus be a waiver of any privileges or protections.

The evidence indicates that the Romeros provided FATIC with the Wendt appraisal in March 2017, one month after FATIC informed them that FATIC would no longer provide a defense in Shih/Ko litigation. (RJN, Exh. 3, Romero Decl. ¶ 7.) At that point, the Romeros waived any attorney-client or work-product privileges or protections related to the appraisal. Even if the March 2017 disclosure of the Wendt appraisal was not a waiver, at the time Wendt’s deposition was taken in December 2018, without any objection and without a confidentiality or protective order in place, any privileges or protections evaporated.

And it is correct that Plaintiffs’ further filing of the summary of the Wendt appraisal and portions of her deposition transcript with the Court also waived any privileges or protections, as the summary and portions of the transcript are now a matter of public record.

(Songstad RJN, Exh. 1.)

Here, the Court similarly finds that the communications amongst Wendt, Plaintiffs, and Weinberg and the Wendt appraisal itself are protected by the attorney-client privilege and work-product doctrine. However, the Court also finds that the attorney-client privilege and work-product protections concerning the Wendt appraisal and any communications amongst Wendt, Plaintiffs, and Weinberg have been waived to the extent they were discussed at the Wendt and Weinberg depositions. Accordingly, the Court finds that the Weinberg deposition is discoverable and no good cause exists for the protective order sought.

As explained in the Court’s September 3, 2019 Minute Order, any communications made to FATIC after February 2017 would not have been pursuant to or covered by Section 2860, as Weinberg was simply no longer independent or Cumis counsel. Further, any communications made to FATIC after February 2017 would also not be protected under the independent basis in Soltani-Rastegar because the communications would not have “been intended for the information or assistance of an attorney” hired by FATIC to defend them. Any communications regarding the Wendt appraisal or regarding communications amongst Wendt, Plaintiffs, and Weinberg after February 2017 to FATIC would thus be a waiver of any privileges or protections. Here, the deposition of Lisa Weinberg was taken on December 20, 2018, long after February 2017, without any objection and without a confidentiality or protective order in place. At that time, any privileges or protections evaporated.

Based on the foregoing, Plaintiffs’ motion for protective order is DENIED.

Monetary Sanctions

Code of Civil Procedure section 2025.420(h) provides in relevant part: “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.”

Songstad requests sanctions against Plaintiffs in the amount of $6,150.00 for 11.2 hours spent reviewing, researching, and drafting the opposition, an anticipated 1 hour reviewing the Reply, and an anticipated 4 hours traveling to and from Court to attend the hearing billed at a rate of $250 per hour. Given that the opposition was filed after the Court’s ruling on the protective order regarding the Wendt deposition and the substantially similar arguments raised, the Court finds that the amount of sanctions requested is unreasonable. The Court awards reduced sanctions in the amount of $2,750.00, for 5 hours spent preparing the opposition and 1 hour attending the hearing billed at a rate of $250 per hour.

Shih/Ko Protective Order

Plaintiffs seek a protective order that provides that:

  1. Neither Li-Chuan Shih or Tun-Jen Ko, nor their counsel or agents, shall use for any purpose the Brenda Wendt appraisal, or any analyses by Brenda Wendt or David Gribin of the Romero property in Sierra Madre or of the encroachment;

  2. Neither Li-Chuan Shih or Tun-Jen Ko, nor their counsel or agents, shall use for any purpose any information relating to any valuation or appraisals, or any testimony expert or otherwise regarding appraisals, contained in any depositions in this case;

  3. Neither Li-Chuan Shih or Tun-Jen Ko, nor their counsel or agents, shall use for any purpose any discovery provided or obtained in this case, including the transcript of any deposition obtained in this action;

  4. Neither Li-Chuan Shih or Tun-Jen Ko, nor their counsel or agents, shall use for any purpose any document filed in connection with FATIC’s motion for summary adjudication, or any motion to compel or any motion for protective order in this case;

  5. Neither Li-Chuan Shih or Tun-Jen Ko (“Shih/Ko”), nor their counsel or agents, shall use for any purpose any information obtained from First American Title Insurance Company (“FATIC”) concerning this case;

  6. Neither FATIC, nor its counsel or agents, shall provide Shih/Ko, or their counsel or agents, any information provided by or obtained from Cesar Romero or Tatiana Romero, or their attorneys or agents, with respect to any valuation or appraisals, or any testimony expert or otherwise regarding appraisals of the Romero property; and

  7. Neither FATIC, nor its counsel or agents, shall provide any information concerning this case to Shih/Ko, their counsel or agents.

Plaintiffs argue that the requested protective order is necessary to prevent misuse against the Romeros in the Shih/Ko case of valuation and related privileged information produced through discovery in this case.

Plaintiffs’ motion for protective order is DENIED. The Court knows of no authority, and none is supplied, that allows this Court to determine the use or admissibility of evidence in the Related Action regardless of its origin. Plaintiffs’ remedy is to seek the exclusion of that evidence via a motion in limine or otherwise before the trial judge handling the Related Action.

Monetary Sanctions

Code of Civil Procedure section 2025.420(h) provides in relevant part: “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.”

The Court finds that the imposition of sanctions is not warranted here as it appears that Plaintiffs may have properly brought this motion in the Related Action.

Conclusion

Plaintiffs’ motions for protective order are DENIED. Plaintiffs are ordered to pay sanctions in the amount of $2,750.00 to Songstad Randall Coffee Humphrey LLP within 30 days.

Third party Songstad Randall Coffee Humphrey LLP is ordered to give notice.